Citation Nr: 21064282 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 19-08 152 DATE: October 19, 2021 REMANDED Entitlement to an evaluation in excess of 10 percent prior to April 18, 2021, and in excess in 20 percent from April 18, 2021, for cervical spine fusion with cervical strain is remanded. REASONS FOR REMAND The Veteran had active service from November 1991 to August 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2016 rating decision. In April 2021, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is included in the electronic claims file. In a July 2021 rating decision, a 20 percent evaluation was granted effective April 18, 2021, for cervical spine fusion with cervical strain (previously rated as chronic cervical strain). The Veteran is presumed to be seeking the maximum benefit allowed by law and regulation, and therefore the additional assignment of benefits is not considered to have resolved her claim. AB v. Brown, 6 Vet. App. 35 (1993). In August 2021, the Veteran appointed an attorney, Daniel J. Marusak, as her representative via an executed VA Form 21-22a. In an August 2021 letter, the attorney then attempted to withdraw his representation of the Veteran. However, the representation has not been withdrawn in accordance with 38 C.F.R. § 20.608(b). Once an appeal has been certified to the Board, a representative may not withdraw without showing good cause through a written motion that complies with the criteria set forth in 38 C.F.R. § 20.608(b)(2). Here, the attorney submitted a withdrawal after certification of the appeal to the Board and did not provide good cause reasons for doing so. Absent proper compliance with the directives set forth by 38 C.F.R. § 20.608(b)(2), the withdrawal of representation is not accepted as valid. The Veteran has not appointed a new representative therefore, the attorney remains the appointed representative. Entitlement to an evaluation in excess of 10 percent prior to April 18, 2021, and in excess in 20 percent from April 18, 2021, for cervical spine fusion with cervical strain is remanded. Following the issuance of a statement of the case (SOC) in January 2019 and certification of the appeal to the Board in August 2019, additional pertinent evidence was added to the record, to include a May 2021 VA cervical spine examination report as well as VA treatment records dated through July 2021, that was developed by VA. Neither the Veteran nor her attorney waived review of this evidence. 38 U.S.C. § 7105(e); 38 C.F.R. § 20.1304(c). Thus, a remand is required so that a supplemental statement of the case (SSOC) may be issued with consideration of all the evidence of record with regard to the claim on appeal. Evidence of record further reflects that the Veteran received VA medical treatment for her service-connected cervical spine disability from Denver VAMC, Rocky Mountain Regional VAMC, and Colorado Springs VA outpatient clinic. As evidence of record includes treatment records dated up to July 2021 and does not include cervical spine surgical treatment records from May 2019 from those facilities, all pertinent VA treatment records should be obtained and properly associated with the record. 38 U.S.C. § 5103A(c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). The matter is REMANDED for the following actions: 1. Obtain updated treatment records pertaining to the Veteran's service-connected cervical spine disability from Denver VAMC, Rocky Mountain Regional VAMC, and Colorado Springs VA outpatient clinic for the time periods from January 2019 to January 2020 (to include May 2019 cervical spine surgical treatment at Denver VAMC) and from July 2021 to the present and associate them with the record. 2. After completing the above actions and any other necessary development, the claim on appeal must be re-adjudicated, taking into consideration all relevant evidence associated with the record since the January 2019 SOC. If the benefit on appeal remains denied, a SSOC must be provided to the Veteran and her attorney. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. D. Deane, 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.