Citation Nr: 21071346 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 16-01 200 DATE: November 30, 2021 REMANDED Entitlement to a rating in excess of 40 percent for service-connected arthritis, lumbosacral and thoracic spines (lumbar spine disability), to include consideration of an earlier effective date, is remanded. Entitlement to a rating in excess of 30 percent for service-connected status post discectomy, C4-5 and C5-6 (cervical spine disability), to include consideration of an earlier effective date, is remanded. Entitlement to a rating in excess of 70 percent for depressive disorder, not otherwise specified (NOS), to include consideration of an earlier effective date, is remanded. Entitlement to a compensable rating prior to July 2, 2010 and in excess of 10 percent thereafter for service-connected left upper extremity radiculopathy is remanded. Entitlement to a compensable rating prior to July 2, 2010 and in excess of 10 percent thereafter for service-connected right upper extremity radiculopathy is remanded. Entitlement to a compensable rating prior to January 19, 2011 and in excess of 10 percent thereafter for service-connected right lower extremity radiculopathy is remanded. Entitlement to a compensable rating prior to January 19, 2011 and in excess of 10 percent thereafter for service-connected left lower extremity radiculopathy is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to July 2, 2010 is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1975 to November 1975 and from July 1977 to December 1996. By way of history, in October 2018, the Board issued a decision that denied a rating in excess of 40 percent for the Veteran's service-connected lumbar spine disability; denied a rating in excess of 30 percent for the Veteran's service-connected cervical spine disability; awarded separate 10 percent disability ratings to the Veteran's service-connected bilateral lower extremity radiculopathy, effective January 19, 2011; awarded separate 10 percent disability ratings to the Veteran's service-connected bilateral upper extremity radiculopathy, effective July 2, 2010; awarded a 70 percent disability rating to the Veteran's service-connected depressive disorder, NOS, effective March 28, 2011; and awarded TDIU, effective March 28, 2011. Following the Veteran's appeal, the United States Court of Appeals for Veterans Claims (Court) issued a March 2020 Joint Motion for Remand (JMR) that vacated the Board's October 2018 decision as it pertained to the above-listed issues and remanded the matters for action consistent with the Court's directives. Specifically, with regard to the ratings assigned to the Veteran's service-connected lumbar spine disability, cervical spine disability, and depressive disorder, NOS, the Court determined that the Board failed to address whether effective dates earlier than March 28, 2011, were warranted pursuant to 38 C.F.R. § 3.400(o)(2). The Court also determined that the Board failed to provide adequate reasons and bases concerning the effective dates and ratings assigned to the Veteran's bilateral upper extremity radiculopathy and bilateral lower extremity radiculopathy. Similarly, the Court determined that the Board failed to provide adequate reasons and bases concerning the effective date assigned to the award of a TDIU. Upon receipt of the remanded claims, the Board in November 2020 further remanded to the Agency of Original Jurisdiction (AOJ) the seven enumerated increased rating claims listed above as well as the earlier effective date for the grant of TDIU. After carrying out the development specified by the Board, the AOJ issued a May 2021 rating decision granting increased ratings for the bilateral upper radiculopathy and left lower radiculopathy effective April 2, 2021 and assigned an effective date of July 2, 2010 for the grant of TDIU. In a corresponding May 2021 Supplemental Statement of the Case, the AOJ continued the denial of increased ratings and earlier effective dates for the lumbar spine disability, cervical spine disability, and depressive disorder, and denied ratings in excess of those assigned in the May 2021 rating decision for the radiculopathy claims; furthermore, an effective date prior to July 2, 2010 for the grant of TDIU was also denied. Following the issuance of the May 2021 Supplemental Statement of the Case, and prior to the certification of the case back to the Board later in the same month, the Veteran in October 2021 was afforded new VA examinations corresponding to each of the enumerated issues. To date, the AOJ has not issued a new Supplemental Statement of the Case addressing whether any claimed benefits may be granted in light of any of the findings on these new examinations. A remand is therefore needed for the AOJ to issue an updated Supplemental Statement of the Case that considers this recent evidence before the Board can continue to adjudicate the claims on appeal. The matters are REMANDED for the following action: Readjudicate the claims seeking increased ratings and earlier effective dates for the lumbosacral and thoracic spine disability, cervical spine disability, depressive disorder NOS, bilateral upper extremity radiculopathy, and bilateral lower extremity radiculopathy, as well as earlier effective date for TDIU. If any benefit sought is not granted to the Veteran's satisfaction, issue the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond before returning the case to the Board. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher M. Collins, 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.