Citation Nr: 21012043 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 14-21 020A DATE: March 3, 2021 REMANDED Entitlement to a disability rating greater than 20 percent prior to June 24, 2020 and greater than 30 percent thereafter for cervical strain with degenerative joint disease is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REFERRED ISSUE With his June 2019 VA Form 21-8940, the Veteran asserted he had residuals of a traumatic brain injury from a fall during service, including a mental health condition. Effective March 24, 2015, VA adopted a standardized claims system. A completed VA Form 21-526 or 21-526EZ is the only way to initiate adjudication of a claim for compensation. Any indication of a desire to file benefits by any appellant that is not on the claims form is considered a request for an application form. This is REFERRED to the RO to provide the appellant with a copy of the claim application form. REASONS FOR REMAND The Veteran served on active duty in the United States Army from February 1986 to May 1989. This appeal is before the Board of Veterans’ Appeals (Board) from a February 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge during a May 2018 travel board hearing. A transcript of that proceeding is associated with the claims file. In a September 2018 decision, the Board denied the Veteran’s claim for a disability rating greater than 20 percent for cervical strain with degenerative joint disease, to include entitlement to a separate rating for neurologic abnormalities. At that time, the Board remanded the TDIU claim. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (CAVC), which resulted in a Joint Motion for Partial Remand (JMPR) granted by the CAVC in October 2019. Pursuant to the JMPR, those portions of the Board’s decision denying a higher disability rating for the Veteran’s cervical spine disability and for a separate rating for objective neurologic abnormalities claims were vacated, and the matter remanded to the Board. In April 2020 the Board remanded the cervical spine issue in order for the RO to obtain a new examination that provided an estimate of any additional functional loss that the Veteran experiences due to flares, including but not limited to, additional limitations to his range of motion of his cervical spine, based on all the evidence of record, in accordance with Sharp v. Shulkin, 29 Vet. App. 26 (2017). Additionally, the VA examiner was directed to opine as to the medical significance, if any, of the Veteran’s July 2012 VA pain consultation which measured +3 bilateral reflexes. Finally, updated VA treatment records were to be obtained. In July 2020, the RO issued a Supplemental Statement of the Case on the TDIU issue that had been remanded in 2018. In August 2020, the RO issued a Supplemental Statement of the Case on the cervical spine issue that had been remanded in April 2020, in part granting an increase to 30 percent effective June 24, 2020. Both claims were returned to the Board in August 2020. 1. Entitlement to a disability rating greater than 20 percent from May 14, 2012 to June 24, 2020 and greater than 30 percent thereafter for cervical strain with degenerative joint disease is remanded. In accordance with the Board’s Remand instructions, the Veteran underwent a VA examination for his cervical spine in June 2020. It is not entirely clear why, but apparently he underwent another VA examination of his cervical spine on August 11, 2020. That same day, the RO issued a rating decision, which did not list the August 2020 VA examination in the evidence considered. The RO then issued a Supplemental Statement of the Case (SSOC) on August 13, 2020, which also did not indicate the August 2020 VA examination as evidence that had been considered. Given the short time between the examination and the SSOC, it is possible that the examination report had not been associated with the claims file at the time of the issuance of the SSOC. The examination of the Veteran’s cervical spine is clearly relevant. In January 2021, the Board notified the Veteran that he had the right to initial Agency of Jurisdiction review of the evidence, or he could waive this right by submitting a waiver in writing. Neither the Veteran nor his representative responded within the 45-day period allowed, and the appeal must be remanded to the AOJ for review of the August 2020 VA examination report and issuance of a new SSOC. Due process concerns prevent the Board from considering relevant evidence in the first instance absent waiver from the claimant. 2. Entitlement to a TDIU is remanded. There has not been substantial compliance with the Board’s previous remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, the RO was directed to provide the Veteran’s claims file to an appropriate VA examiner to obtain an opinion as to the functional effects of the service-connected cervical spine and hernia disabilities alone on his ability to obtain or maintain substantially gainful employment, with a full supporting rationale. As noted above, the Veteran underwent a VA examination in June 2020, and the examiner noted the functional impact the Veteran’s cervical spine disability would have on his ability to work. However, the examiner did not discuss the impact the Veteran’s hernia disability has on his ability to obtain or maintain substantially gainful employment. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all available VA treatment records from April 2020 to present. 2. Send the Veteran’s file to a VA examiner for an opinion as to the functional effects of the service-connected hernia disability on his ability to obtain or maintain substantially gainful employment, with a full supporting rationale based on the examiner’s clinical experience, medical expertise, and established medical principles. If an in-person examination is needed to provide this opinion, one should be scheduled. 3. After completing the above and any other development deemed necessary, readjudicate the Veteran’s claims based on the entirety of the evidence. If the benefits sought on appeal are not granted to the Veteran’s satisfaction, he and his representative should be provided with a supplemental statement of the case which expressly considers all evidence received since the August 2020 SSOC, to include the August 2020 VA examination. An appropriate period of time should be allowed for response. The case should then be returned to the Board for further consideration. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Parker N. Reynolds, 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.