Citation Nr: 21062005
Decision Date: 10/06/21	Archive Date: 10/06/21

DOCKET NO. 17-44 641
DATE: October 6, 2021

REMANDED

Entitlement to an increased rating for service-connected degenerative disc disease (DDD) of the cervical spine, to include the propriety of the reduction of the rating from 30 percent to 20 percent (effective January 30, 2017) is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the United States Army from April 1991 to May 1994. The Veteran is a recipient of the Combat Infantryman Badge.

This matter is before the Board of Veterans' Appeal (Board) on appeal from a February 2017 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO) reducing the Veteran's rating for his neck disability from 30 percent to 20 percent, effective January 30, 2017. 

In March 2019, the issue was before the Board and broadened to include both entitlement to an increased rating and the propriety of the reduction. The issue of the propriety of the reduction was remanded for issuance of a supplemental statement of the case (SSOC); and the issue of increased rating was remanded for an examination in accordance with guidelines of Sharp v. Shulkin, 29 Vet. App. 26 (2017). 

The United States Court of Appeals for Veterans Claims has held that a remand confers on the appellant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998).

In response to the Board's March 2019 remand, the Veteran was afforded a VA examination in September 2019 and March 2020. Additionally, the RO issued an SSOC in April 2020. While the RO properly phrased the issue, the adjudicative narrative solely addressed the evaluation of the neck disability and did not address the actual reduction and whether the same was proper. These two issues have different legal standards.

The Board was clear in its March 2019 remand, the RO was to address the propriety of the reduction in the SSOC not merely the appropriate rating. As such, the Board finds that the RO has not complied with the March 2019 remand directives and a new remand is needed to ensure full compliance. 

Additionally, the Board finds that the claim for increased rating for cervical spine condition, must be remanded as well because it is inextricably intertwined with the issue regarding the propriety of the rating reduction. As such, the two issues should be decided together on remand. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that two issues are inextricably intertwined when the adjudication of one issue could have significant impact on the other issue).

The matters are REMANDED for the following action:

1. Issue an SSOC addressing the propriety of the February 2017 decision to reduce the disability rating for DDD of the cervical spine from 30 to 20 percent effective January 30, 2017. 

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2. The issue regarding an increased rating for DDD of the cervical spine should then be readjudicated in light of the evidence of record, to include any decision rendered on the issue addressed in paragraph (1) above.

 

A. J. Spector

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	C. Camille NeSmith, Associate Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.