Citation Nr: 21012708 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 14-06 344 DATE: March 5, 2021 REMANDED Entitlement to a rating in excess of 20 percent prior to December 6, 2019, and in excess of 40 percent thereafter for intervertebral disc syndrome with degenerative arthritis and spinal fusion (low back disability) is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) prior to April 16, 2019 is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from October 1978 to June 1999. He has a 100 percent VA schedular rating for psychiatric disability effective from April 16, 2019, along with special monthly compensation under 38 U.S.C. 1114(s) and 38 CFR 3.350(i). See Rating Decision – Codesheet (October 2020). These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In April 2019, the Veteran, and his spouse, testified before a Veterans Law Judge (VLJ). A hearing transcript is associated with the claims file. A November 2020 Board letter notified the Veteran that the VLJ who conducted his April 2019 hearing was no longer employed with the Board. The Board afforded him 30 days to respond to the notice letter with a request for a new hearing before another VLJ. No response was received and, in accordance with the notice given to him, the Board assumes he does not seek another hearing in these matters. See BVA-General (November 2020). In October 2019, the Board remanded the above mater for additional evidentiary development. The case has now been returned to the Board for readjudication. 1. Entitlement to a rating in excess of 20 percent prior to December 6, 2019, and in excess of 40 percent therefrom for low back disability is remanded. A September 2011 rating decision denied a rating in excess of 20 percent for the Veteran’s low back disability. This appeal arises from the Veteran’s disagreement with that decision. See Rating Decision (September 2011) and NOD (March 2012). In pursuing his claim for increase, the Veteran has not limited his appeal to a 40 percent rating. Indeed, the VA rating schedule reflects that ratings for the spine range from 10 percent to 100 percent. See 38 C.F.R. § 4.71A, General Rating Formula for Diseases and Injuries of the Spine, and Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. During remand status, an October 2020 rating decision granted a 40 percent rating for low back disability from December 6, 2019. However, this award does not represent a full grant of the benefit sought on appeal and, therefore, the claim remains in appeal status. See AB v. Brown, 6 Vet. App. 35 (1993). To ensure due process of law, the Board finds that remand is necessary because the October 2020 rating decision was issued following the most recent supplemental statement of the case (SSOC), dated in August 2020; and, by law, an SSOC must be issued to the Veteran by the agency of original jurisdiction where there are any material changes and to address why a rating higher than 40 percent from December 6, 2019, is not warranted. See 38 C.F.R. § 19.31. Accordingly, the claim of entitlement to a rating in excess of 20 percent prior to December 6, 2019, and in excess of 40 percent therefrom for low back disability is remanded for issuance of a SSOC.   2. Entitlement to TDIU prior to April 16, 2019, is remanded. The Veteran seeks entitlement to TDIU prior to April 16, 2019. His VA TDIU application, VA Form 21-8940, reflects that his back disability precluded his employment; he last worked full-time in October 2011; and he was too disabled to work since March 2012. See VA Form 21-8940 (June 2019). The record shows that, prior to April 16, 2019, service connection was established low back disability (20%) and right shoulder disability (0%). His combined VA disability rating was 20 percent from June 3, 1999. See Rating Decision – Codesheet (October 2020). It is noted that, although the Veteran did not meet the numerical requirements for schedular TDIU under 38 C.F.R. § 4.16(a) prior to April 16, 2019, this does not preclude consideration of extraschedular TDIU under 38 C.F.R. § 4.16(b). Notwithstanding, the Board must defer consideration of TDIU because it is inextricably intertwined with the claim for increase for the low back—notably TDIU is part-and-parcel of the claim for increased received by VA in July 2011. See Rice v. Shinseki, 22 Vet. App. 447 (2009). See also, Harris v. Derwinski, 1 Vet. App. 181 (1991). The matters are REMANDED for the following action: Send the Veteran and his representative a supplemental statement of the case that addresses the issues of (1) Entitlement to a rating in excess of 20 percent prior to December 6, 2019, and in excess of 40 percent thereafter for low back disability; and (2) Entitlement to a total disability rating based on individual unemployability due to service-connected disability prior to April 16, 2019. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E.D. Anderson, 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.