Citation Nr: 21012160 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 12-29 600 DATE: March 3, 2021 REMANDED Entitlement to service connection for a back disability, to include as secondary to the service-connected left knee disability, is remanded. Entitlement to service connection for left leg radiculopathy, to include as secondary to a back disability and/or a service-connected left knee disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from August 1980 to August 1983. These matters come before the Board of Veterans’ Appeals (Board) from rating decisions issued in February 2010 and November 2011 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. These claims were previously before the Board in January 2015, June 2017, and September 2020. In its September 2020 decision, the Board remanded the issues of entitlement to service connection for a back disability and left leg radiculopathy, and entitlement to a TDIU. At that time, the Board also awarded (1) entitlement to a 40 percent rating for traumatic arthritis of the left knee based on limitation of extension, (2) a separate 10 percent rating for traumatic arthritis of the left knee based on limitation of flexion, and (3) a 20 percent rating for meniscal tear of the left knee prior to September 26, 2017. The RO issued a rating decision on October 6, 2020, which effectuated the Board’s grant of (1) a 20 percent rating for meniscal tear of the left knee from August 26, 2009, to September 26, 2017, and (2) a separate 10 percent rating for traumatic arthritis of the left knee with limitation of flexion, effective September 26, 2009. However, rather than effectuate the 40 percent rating for traumatic arthritis of the left knee based on limitation of extension, the RO appears to have treated that issue as one which remained on appeal. Indeed, the RO awarded a 20 percent rating for traumatic arthritis of the left knee with limitation of extension, effective September 26, 2009, and a 40 percent rating, effective September 26, 2017. This rating decision also erroneously informed the Veteran that the ratings assigned for limitation of extension and flexion were only partial grants and could be appealed. To compound the error, the RO issued a Supplemental Statement of the Case (SSOC) on October 6, 2020, which addressed the issue of entitlement to a rating in excess of 20 percent for traumatic arthritis of the left knee with limitation of flexion prior to September 26, 2017. A second rating decision was issued in October 2020, which determined that the effective date of September 26, 2009, for the assignment of (1) a separate 10 percent rating for traumatic arthritis of the left knee with limitation of flexion, and (2) a 20 percent rating for traumatic arthritis of the left knee with limitation of extension was clearly and unmistakably erroneous, and assigned an effective date of August 26, 2009, for such. Thus, to date, the Board’s grant of a 40 percent rating for traumatic arthritis of the left knee based on limitation of extension has not been properly effectuated. Upon remand, this oversight must be remedied by the RO. Additionally, despite the fact that an SSOC addressing the issues of entitlement to service connection for a back disability and left leg radiculopathy, and entitlement to a TDIU has not been issued, those three issues were returned to the Board due to apparent administrative error. The Board notes that an SSOC must be issued if, pursuant to a remand by the Board, a RO develops evidence or cures a procedural defect. 38 C.F.R. § 19.31; see also Manlincon v. West, 12 Vet. App. 238 (1999). However, as explained below, the RO in this case did not develop any evidence, as directed by the Board in its September 2020 remand, prior to returning the case. Therefore, the failure to issue an SSOC is harmless error, as the claims are being returned to the RO for proper development, to include the issuance of an SSOC, if necessary. 1. Entitlement to service connection for a back disability, to include as secondary to the service-connected left knee disability, is remanded. 2. Entitlement to service connection for left leg radiculopathy, to include as secondary to a back disability and service-connected left knee disability is remanded. In its September 2020 decision, the Board determined that a VA addendum opinion was necessary so that a VA examiner can provide an opinion as to whether the Veteran’s back disability and/or left leg radiculopathy were aggravated by his service-connected left knee disability. However, due to an apparent administrative error, the appeal was prematurely returned to the Board without this action having been completed. Thus, the Board must remand for the RO to complete the development and issue a SSOC. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998)(where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance); see also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 3. Entitlement to TDIU is remanded. Regarding the claim for a TDIU, the Board observes that it is intertwined with the pending service-connection claims for the back and left leg disabilities and must also be remanded. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a veteran's claim for the second issue). Accordingly, while the Board sincerely regrets the further delay, the appeal must again be remanded for compliance with its previous remand directives. The matters are REMANDED for the following action: 1. Effectuate the Board’s September 2020 grant of entitlement to a 40 percent rating for traumatic arthritis of the left knee based on limitation of extension. 2. Complete the development ordered by the Board in its September 2020 remand. Specifically, submit the Veteran’s file to an examiner who can provide the following opinions: a. Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s back disability has been aggravated (chronically worsened) by his service-connected left knee disability? b. Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s left leg disability, including radiculopathy, has been aggravated by his back disability and/or his service-connected left leg disability? If aggravation is found, is there competent (medical or lay) evidence created prior to the aggravation or between the aggravation and current level of disability that shows a baseline of the disability prior to aggravation? The examiner must provide a comprehensive rationale for each opinion provided. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. 3. Readjudicate the issues on appeal after a review of all relevant evidence. If any of the benefits sought on appeal remain denied, the Veteran should be provided with a SSOC. JEREMY J. OLSEN Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.D. Hobbs, 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.