Citation Nr: 21067711
Decision Date: 11/05/21	Archive Date: 11/05/21

DOCKET NO. 17-22 553A
DATE: November 5, 2021

REMANDED

Entitlement to an effective date prior to September 7, 2011 for the award of service connection for the cervical spine strain with degenerative changes of C5-C7 and arthritis is remanded.

Entitlement to an effective date other than June 1, 2015 for the assignment of a 10 percent disability rating for the service-connected traumatic compression fracture T-6/T-7 is remanded.

REASONS FOR REMAND

The Veteran served on active duty from November 1999 to July 2006 and from January 2008 to July 2008.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).

These matters were previously remanded by the Board in February 2019 for the issuance of a statement of the case (SOC).

1. Entitlement to an effective date prior to September 7, 2011 for the award of service connection for the cervical spine strain with degenerative changes of C5-C7 and arthritis is remanded.

2. Entitlement to an effective date other than June 1, 2015 for the assignment of a 10 percent disability rating for the service-connected traumatic compression fracture T-6/T-7 is remanded.

Unfortunately, remand is required prior to adjudication of the Veteran's effective date claims.  To that end, a remand is required for the RO to issue an SOC that addresses the issues of whether an effective date prior to September 7, 2011 and an effective date other than June 1, 2015 are warranted for the Veteran's service-connected cervical spine strain and traumatic compression fracture, respectively. 

In the prior February 2019 remand, the Board directed the RO to issue an SOC for these issues.  Thereafter, however, the RO issued a supplemental statement of the case (SSOC) in June 2020.  This was a procedural error.  Indeed, the SSOC expressly stated that it was "not a decision on any new issues, but it is intended to inform you of any material changes in, or additions to, the information contained in the [SOC] that we previously sent you."  This is incorrect, as the issues are not yet currently on appeal.  Instead, the Veteran must submit a substantive appeal in order to perfect the appeal on the issues.  See, e.g., Manlincon v. West, 12 Vet. App. 238 (1999).  By issuing an SSOC instead of an SOC, the RO did not comply with the Board's remand directives, thereby circumventing remand requirements.  Consequently, remand is required pursuant to Stegall v. West, 11 Vet. App. 268, 271 (1998). 

The matters are REMANDED for the following action:

Issue a statement of the case (SOC) for the issues of entitlement to an effective date other than June 1, 2015 for the assignment of a 10 percent disability rating for the service-connected traumatic compression fracture T-6/T-7 and entitlement to an effective date earlier than September 7, 2011 for the award of service connection for the cervical spine strain with degenerative changes of C5-C7 and arthritis.  The Veteran should be advised of the time limit for perfecting an appeal and afforded such period of time to do so.  If and only if he timely perfects an appeal of the issues, the matter should be returned to the Board.

 

 

A. S. CARACCIOLO

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	S. Medina

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.