Citation Nr: 21068499 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 17-45 102 DATE: November 10, 2021 REMANDED Entitlement to a rating in excess of 20 percent prior to November 13, 2019 and in excess of 30 percent thereafter for cervical strain with degenerative joint disease is remanded. Entitlement to a rating in excess of 20 percent prior to May 15, 2021 and in excess of 40 percent thereafter for left upper extremity radiculopathy associated with cervical strain with degenerative joint disease is remanded. Entitlement to a rating in excess of 20 percent prior to May 15, 2021 and in excess of 40 percent thereafter for right upper extremity radiculopathy associated with cervical strain with degenerative joint disease is remanded. REASONS FOR REMAND The Veteran had active service from February 1984 to May 1988. This matter was previously before the Board in May 2019. At that time, the Board noted that additional pertinent evidence had been received and associated with the Veteran's claims file since the Agency of Original Jurisdiction (AOJ) had last issued a supplemental statement of the case (SSOC) in December 2017, and that the Veteran did not waive initial review of that evidence by the AOJ. Thus, the matters were remanded. While in Remand status, the Veteran underwent additional VA examinations for his neck and radiculopathy disabilities in November 2019, and an April 2020 rating decision increased the rating for the Veteran's cervical strain disability to 30 percent disabling, effective November 13, 2019. An addendum opinion was obtained in May 2020, and a SSOC was issued in July 2020. The SSOC noted consideration of all prior, relevant evidence. The appeal was then transferred to the Board in August 2020. The Veteran subsequently filed a claim for a total disability rating based on individual unemployability (TDIU) in November 2020, and in connection with that claim, the AOJ scheduled the Veteran for additional examinations for his neck and radiculopathy disabilities, which took place in December 2020. No SSOC or rating decision was issued pertaining to those disabilities. The Veteran then filed an increased rating claim for his neck disability in May 2021, and, notwithstanding that the issue had already been recertified to the Board, the AOJ scheduled the Veteran for a VA cervical spine examination, which took place in June 2021. The AOJ issued a rating decision in June 2021, increasing the ratings for right and left upper extremity radiculopathy and continuing the 30 percent rating assigned for cervical strain with degenerative joint disease. While it was noted in the June 2021 rating decision that the AOJ had considered the June 2021 VA examinations, there was no indication that the exams that occurred in December 2020 were considered. Thus, in September 2021 Correspondence, the Board informed the Veteran that additional evidence had been associated with the claims file and that he had the right to have it reviewed by the AOJ or to waive this right by submitting a waiver in writing. The letter further advised the Veteran that if he did not respond within 45 days from the date of the letter, it would be assumed that he did not wish to have the Board decide his appeal at the current time and his appeal would be remanded to the AOJ for review. The Veteran did not respond to the letter within 45 days. Therefore, a remand is necessary to have the AOJ review the additional evidence in connection with the appeal to ensure due process. The matters are REMANDED for the following action: Readjudicate the issues on appeal on the basis of all additional evidence received since the July 2020 SSOC. If the benefits sought are not granted, provide the Veteran with a SSOC. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Polly Johnson, 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.