Citation Nr: 21072380 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 12-28 814 DATE: December 3, 2021 ISSUE Entitlement to disability evaluation in excess of 20 percent for intervertebral disc syndrome with degenerative arthritis of the cervical spine. REMANDED Entitlement to a disability evaluation in excess of 20 percent for intervertebral disc syndrome with degenerative arthritis of the cervical spine is remanded. REASONS FOR REMAND The Veteran served in the Army from February 1984 to June 1984 and from November 2005 to May 13, 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In July 2016, the Veteran was afforded a hearing before the undersigned Veterans Law Judge. A transcript of that proceeding is of record. This matter was previously adjudicated by the Board in September 2017 and March 2019. In the September 2017 decision, the Board, in relevant part, denied the Veteran's claim of entitlement to a disability evaluation in excess of 20 percent for intervertebral disc syndrome with degenerative arthritis of the cervical spine. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (CAVC). In June 2018, CAVC granted an Amended Joint Motion for Partial Remand (JMPR), vacating the Board's September 2017 decision which found that the Veteran was not entitled to an increased disability rating evaluation in excess of 20 percent for intervertebral disc syndrome with degenerative arthritis of the cervical spine. See CAVC Order June 1, 2018. The JMPR found that the Board's September 2017 decision did not contain a sufficient statement of reasons or bases for reaching its determination regarding functional loss due to pain on movement and diminished excursion, strength, speed, coordination, and endurance. In its March 2019 decision, the Board remanded the Veteran's claim for a VA examination to evaluate the current severity of her cervical spine disability, with particular focus on the Veteran's functional loss and pain taken into consideration. The Board notes that January 2021 and February 2021 VA examinations did take place. In February 2021, the RO issued a Supplemental Statement of the Case (SSOC) which continued the denial of a rating evaluation in excess of 20 percent for intervertebral disc syndrome with degenerative arthritis of the cervical spine. The matter has returned to the Board for appellate consideration. Entitlement to a disability evaluation in excess of 20 percent for intervertebral disc syndrome with degenerative arthritis of the cervical spine is remanded. As referenced in the introduction of this decision, this issue was last adjudicated in a February 2021 Supplemental Statement of the Case (SSOC). Since that SSOC, additional pertinent evidence in the form of a May 3, 2021 Neck and Cervical Spine Condition examination was associated with the claims file. Recognizing such, the Board requested a waiver of initial Agency of Original Jurisdiction (AOJ) of this May 3, 2021 Neck and Cervical Spine Condition examination in an October 2021 letter sent to the Veteran. In November 2021, the Veteran responded that she did not wish to waive initial AOJ consideration of this evidence and requested that the matter be remanded to the AOJ for it to consider this evidence in the first instance. See November 15, 2021 Correspondence. Accordingly, this issue is remanded to the AOJ for the issuance of a SSOC following consideration of the additional evidence. 38 C.F.R. § 19.31. This matter is REMANDED for the following action: After conducting any additional indicated development, if any, the case should again be reviewed and adjudicated on the evidence of record and any additional evidence submitted by the Veteran. If the benefits sought on appeal are not granted, the Veteran and her representative should be furnished a SSOC, and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Little, 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.