Citation Nr: 21009469 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 16-29 847 DATE: February 22, 2021 REMANDED Entitlement to restoration of payments, to include backpay, for the grants of service connection for cervical and lumbar spine disabilities, effective from the date of service connection, February 24, 1979, is remanded. Entitlement to an effective date earlier than May 25, 2010 for the award of a 20 percent rating, and an effective date earlier than October 28, 2010 for the award of a 30 percent rating, for a cervical spine disability, is remanded. Entitlement to an effective date earlier than October 28, 2010 for the award of a 20 percent rating for a lumbar spine disability is remanded. Entitlement to an effective date earlier than October 28, 2010 for the grant of service connection for radiculopathy of the right lower extremity is remanded. Entitlement to an effective date earlier than October 28, 2010 for the grant of service connection for radiculopathy of the left lower extremity is remanded. Entitlement to an effective date earlier than October 28, 2010 for the grant of service connection for radiculopathy of the right upper extremity is remanded. Entitlement to an effective date earlier than October 28, 2010 for the grant of service connection for radiculopathy of the left upper extremity is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1977 to February 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Veteran presented testimony at a videoconference hearing before the undersigned Veterans Law Judge. The content of the hearing testimony has been considered. In November 2019, the Board remanded the case for additional development and it now returns for further appellate review. While on remand, in a September 2020 rating decision the agency of original jurisdiction (AOJ) awarded a partial grant of benefits sought, assigning an effective date of May 25, 2010, for the award of a 20 percent rating for a cervical spine disability. The AOJ also assigned a 30 percent rating for such disability from October 28, 2010, to April 30, 2012. Such awards do not constitute a full grant of benefits, and as such these issues remain on appeal, and the cover page of this decision has been modified to reflect the awards. REFERRED CLAIM Unfortunately, another remand is necessary in order to ensure compliance with previous remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). Specifically, in the November 2019 decision, the Board found a claim of entitlement to restoration of payments, to include backpay, for the grants of service connection for cervical and lumbar spine disabilities, effective from the date of service connection, February 24, 1979, had been reasonably raised by the Veteran, both in writing several times and during her October 2019 Board hearing. For review, the Board noted that during the October 2019 Board hearing, the Veteran stated that she is seeking RESTORATION OF PAYMENTS, to include backpay, for the grants of service connection for cervical and lumbar spine disabilities, effective from the date of service connection, February 24, 1979. She argued that, while her VA Form 21-526 (signed and dated by the Veteran on February 23, 1979, the date of separation from service), noted an Arizona address, her DD Form 214 at separation from service noted an address in Ohio as her current mailing address. She argues that VA failed to take adequate steps in locating her, as there are two addresses in the claims file. Procedurally, the Veteran was initially granted service connection for a cervical spine disability, rated at 10 percent, and a lumbar spine disability, rated at 0 percent, effective from February 24, 1979, in a June 1979 rating decision. However, subsequent to the favorable determination, the RO noted in the claims file that payment of the Veteran’s disability checks was not possible as the address on file was not correct. In a May 1980 determination, the RO suspended the Veteran’s payments as a current address was not of record. In a June 2000 rating decision, the Veteran was awarded a 0 percent rating for the cervical spine, effective from February 3, 2000, the date of receipt of an updated address from the Veteran. Thereafter, on May 25, 2010, the Veteran filed for an increased rating for her cervical and lumbar spine disabilities. An August 2010 rating decision increased the cervical and lumbar spine disabilities to 10 percent, effective from May 25, 2010. An October 28, 2010 statement from the Veteran raised a claim of entitlement to the restoration of her 10 percent rating from February 24, 1979, to include the back pay owed to her as a result of that disability. Thereafter, in January 2011, the Veteran again filed a claim of entitlement to ratings in excess of 10 percent for the cervical and lumbar spines, as well as radiculopathy of the bilateral upper and lower extremities. In a May 2012 rating decision, in relevant part, the RO increased the Veteran’s ratings for the lumbar and cervical spine disabilities to 20 percent, effective from October 28, 2010. In her May 2013 notice of disagreement, the Veteran again references entitlement to restoration of her 10 percent rating for the cervical spine, to include back pay. However, the Board notes that to date, the RO has not adjudicated the issue. The Board then referred the claim to the RO for adjudication in the first instance. Following the referral, the AOJ addressed the issue of entitlement to restoration of payments, to include backpay, for the grant of service connection for a cervical spine disability in a September 2020 supplemental statement of the case (SSOC). The Board finds such consideration is inadequate to comply with the previous instruction. Initially, the AOJ only adjudicated the claim in reference to the cervical spine disability. While the law and analysis are the same, the AOJ should include the lumbar spine in its adjudication to address the entirety of the Veteran’s claim. Further, the AOJ erred in adjudicating the issue in the first instance in an SSOC. Specifically, pursuant to 38 C.F.R. § 19.31(a) (2019), “in no case will a Supplemental Statement of the Case be used to announce decisions by the agency of original jurisdiction on issues not previously addressed in the Statement of the Case, or to respond to a notice of disagreement on newly appealed issues that were not addressed in the Statement of the Case.” In this regard, the SSOC serves a different purpose than a rating decision, and accordingly, the adjudication of the referred issue in an SSOC is inadequate to comply with the previous remand instructions. ACCORDINGLY, THE CLAIM IS AGAIN REFERRED TO THE RO FOR INITIAL ADJUDICATION. The RO must take all necessary actions to adjudicate the Veteran’s claim of entitlement to restoration of payments, to include backpay, for the grants of service connection for cervical and lumbar spine disabilities, effective from the date of service connection, February 24, 1979. 1. Entitlement to an effective date earlier than May 25, 2010 for the award of a 20 percent rating, and an effective date earlier than October 28, 2010 for the award of a 30 percent rating, for a cervical spine disability. 2. Entitlement to an effective date earlier than October 28, 2010 for the award of a 20 percent rating for a lumbar spine disability. Similar to the referred issue above, the Board also finds a remand is necessary to ensure compliance with previous remand instructions for the issues of entitlement to an effective date earlier than May 25, 2010 for the award of a 20 percent rating, and an effective date earlier than October 28, 2010 for the award of a 30 percent rating, for a cervical spine disability, and entitlement to an effective date earlier than October 28, 2010 for the award of a 20 percent rating for a lumbar spine disability. Stegall, supra. In this regard, 38 C.F.R. § 19.31(a) specifically precludes the use of an SSOC to respond to a notice of disagreement on newly appealed issues that were not addressed in the statement of the case (SOC). Here, the Board remanded these issues for issuance of an SOC pursuant to Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The Board again finds the September 2020 SSOC is inadequate to comply with the previous Board remand, and another remand is necessary for the issuance of an SOC in accordance with 38 C.F.R. §§ 19.29, 19.30, and 19.31. Furthermore, as noted in the prior remand, these issues are inextricably intertwined with the Veteran’s claim for restoration of payments. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue may have a "significant impact" upon another, the two claims are inextricably intertwined). 3. Entitlement to an effective date earlier than October 28, 2010 for the award of service connection for bilateral radiculopathy of the right and left lower extremities, and the right and left upper extremities. The Veteran also contends that she is entitled to an effective date earlier than October 28, 2010 for the award of service connection for bilateral upper and lower extremity radiculopathy. The Veteran was awarded service connection for her radiculopathy as secondary to her service-connected cervical and lumbar spine disabilities. Importantly, the rating criteria governing the evaluation of spinal disabilities specifically indicate that any associated objective neurologic abnormalities be separately evaluated under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). Accordingly, these issues are inextricably intertwined with the outcome of the earlier effective date claims and restoration of payments claim, and must be deferred for the adjudication of such claims. See Harris, supra. 4. Entitlement to a TDIU Finally, the Veteran also contends that her service-connected disabilities preclude her from securing and following substantially gainful employment. However, as above, as any decision regarding the raised claim for restoration of benefits from February 24, 1979, to include entitlement to back pay for that period, as well as the other claims remanded herein, could impact the outcome of the Veteran’s entitlement to a TDIU, this claim must also be remanded. See Harris, supra. The matters are REMANDED for the following action: 1. IN A RATING DECISION, take any and all steps necessary to adjudicate the REFERRED claim. (a.) Entitlement to restoration of payments, to include backpay, for the grants of service connection for cervical and lumbar spine disabilities, effective from the date of service connection, February 24, 1979, 2. Send the Veteran and her representative a STATEMENT OF THE CASE that addresses the issues of entitlement to: (a.) an effective date earlier than May 25, 2010 for the award of a 20 percent rating, and earlier than October 28, 2010 for the award of a 30 percent rating, for a cervical spine disability, (b.) an effective date earlier than October 28, 2010 for the award of a 20 percent rating for a lumbar spine disability. 3. If, and only if, the Veteran perfects an appeal by submitting a timely VA Form 9, the issue/s should be returned to the Board for further appellate consideration. 4. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jonathan M. Estes 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.