Citation Nr: A21018554 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 190219-60088 DATE: November 19, 2021 REMANDED Entitlement to a disability rating in excess of 20 percent for cervical spondylosis with degenerative stenosis disc disease (cervical spine disability) is remanded. Entitlement to an initial disability rating in excess of 20 percent prior to February 1, 2021, and in excess of 30 percent thereafter for radiculopathy of the left upper extremity is remanded. Entitlement to an initial disability rating in excess of 20 percent prior to February 1, 2021, and in excess of 40 percent thereafter for radiculopathy of the right upper extremity is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from June 1982 to November 1988. By way of background, a rating decision was issued under the legacy system in May 2015 and the Veteran submitted a timely notice of disagreement. In August 2018, the Agency of Original Jurisdiction (AOJ) issued a Statement of the Case (SOC). During the same month of August 2018, the Veteran opted into the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting a Rapid Appeals Modernization Program (RAMP) election form and selecting the higher-level review (HLR) lane, appealing the August 2018 SOC. In January 2019, the AOJ issued a RAMP HLR decision on appeal, which considered the evidence of record at the time of the August 2018 SOC. In February 2019, the Veteran timely appealed the portion of the January 2019 RAMP HLR decision pertaining to the issues above by submitting a RAMP selection form and requested a hearing before the Board and an opportunity to submit evidence at the hearing and within 90 days following the hearing. 38 C.F.R. § 20.202. Thereafter, the Board notes that the Veteran submitted numerous procedural and evidentiary documents pertaining to the current issues on appeal. Of note, in January 2020, the Veteran timely submitted a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) appealing the issues on appeal and requested direct review of the evidence considered by the AOJ. 38 C.F.R. § 20.202. An appellant may switch Board dockets under the AMA by submitting a new VA Form 10182 within one year from the date of the notice of the AOJ decision on appeal, or within 60 days of the date the Board receives the original VA Form 10182, whichever is later. 38 C.F.R. § 20.202(c)(2). The Board interprets the January 2020 VA Form 10182 as a timely request by the Veteran to switch his appeal to the direct review docket as it was received within one year of the AOJ decision on appeal. Based on his docket switch, the Board finds that his request for a Board hearing has been withdrawn. Moreover, the Veteran has not been afforded a hearing pursuant to 38 C.F.R. § 20.302. See id. Based on the foregoing, the Board grants the Veteran's January 28, 2020 request to switch dockets, and his appeal is before the Board on the Direct Review docket. 1. Disability Rating for Cervical Spine is Remanded. 2. Disability Rating for Radiculopathy of the Left Upper Extremity is Remanded. 3. Disability Rating for Radiculopathy of the Right Upper Extremity is Remanded. The issue of entitlement to a higher rating for cervical spine disability, radiculopathy of the left upper extremity, and radiculopathy of the right upper extremity is remanded to correct a duty to assist error that occurred prior to the January 2019 rating decision on appeal. The AOJ obtained a January 2015 examination report prior to the January 2019 rating decision on appeal. However, in March 2016, the Veteran asserted that his service-connected cervical spine disability, radiculopathy of the left upper extremity, and radiculopathy of the right upper extremity had increased in severity since the Veteran was last examined by VA in January 2015. See March 2016 Notice of Disagreement, June 2018 Correspondence. A remand is required to correct the duty to assist error by providing an opportunity for the Veteran to report for a VA examination to ascertain the current severity and manifestations of his disabilities on appeal. The Board acknowledges that the Veteran was afforded a VA examination in March 2021 for the issues on appeal. The Board further acknowledge that new evidence was added to the claims file during a period of time when new evidence was not allowed. The Board may not consider this evidence. 38 C.F.R. § 20.300. That stated, the newly-submitted evidence will be reviewed and considered by the AOJ after it completes the development ordered by the Board immediately below. (Continued on the next page) The matters are REMANDED for the following action: Schedule the Veteran for a VA examination to determine the current symptoms, level of severity, and functional impairment associated with his cervical spine, radiculopathy of the left upper extremity, and radiculopathy of the right upper extremity. The claims file should be reviewed by the examiner. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Mathew 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.