Citation Nr: 21064664 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 16-08 001 DATE: October 21, 2021 REMANDED Entitlement to a rating in excess of 10 percent prior to August 14, 2014, and in excess of 40 percent thereafter for chronic thoracolumbar spine is remanded. Entitlement to a rating in excess of 10 percent prior to October 16, 2020 and in excess of 20 percent thereafter for degenerative joint disease, strain, cervical spine is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to January 22, 2021 is remanded. REASONS FOR REMAND The Veteran served honorably in the United States Army from December 1981 to December 1984 and from June 1992 to September 1992. These issues come before the Board of Veterans' Appeals (Board) on appeal from multiple rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The transcript is of record. The Board notes that entitlement to a TDIU was granted in a March 2021 rating decision. However, it did not constitute a full grant of benefits as TDIU was granted for only a portion of the appeal period. As such, this issue is still ripe for appellate consideration by the Board. 1. Entitlement to a rating in excess of 10 percent prior to August 22, 2014 and in excess of 40 percent thereafter for chronic thoracolumbar spine is remanded. 2. Entitlement to a rating in excess of 10 percent prior to October 16, 2020 and in excess of 20 percent thereafter for degenerative joint disease, strain, cervical spine is remanded. 3. Entitlement to a TDIU due to service-connected disabilities prior to January 22, 2021 is remanded. The Veteran contends that his thoracolumbar and cervical spine symptomology are worse than the ratings currently assigned. In addition, he contends that he is unable to work as a result of his service-connected disabilities. The Board finds that a remand is necessary to issue a Supplemental Statement of the Case (SSOC). The record shows that, following the last AOJ adjudication in November 2020, the RO obtained new VA examinations for the Veteran's cervical and thoracolumbar spine in March 2021 and additional VA treatment records. While the RO issued a March 2021 rating decision readjudicating the issues on appeal, the rating decision incorrectly explained that the rating decision was being issued in response to a "claim for increased evaluation that was received on January 22, 2021." The Board directed the RO in June 2019 to provide the Veteran with VA Form 21-8940, Application for Increased Compensation Based on Unemployability, which he submitted on January 22, 2021. That is the basis for the claims being readjudicated by the RO. However, these claims had already been perfected for appeal to the Board by virtue of the Veteran's February 2016 VA Form 9. As such, an SSOC is required to ensure due process of law and to correct this due process deficiency. 38 C.F.R. §§ 19.31, 19.37. There is no evidence in the record indicating that the Veteran or his representative has waived this right. Therefore, the Board finds a remand is necessary for the issuance of an SSOC. 38 C.F.R. §§ 19.9, 19.31 (c). The matters are REMANDED for the following action: 1. Obtain updated VA and/or private treatment records to the extent possible. If such records are unavailable, the Veteran's claims file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e). 2. Readjudicate these claims, with application of all appropriate laws and regulations, and consideration of any additional information obtained as a result of this remand. All evidence since the November 2020 Supplemental Statement of the Case should be considered. If any decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.T. Massey, 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.