Citation Nr: 21020804
Decision Date: 04/08/21	Archive Date: 04/08/21

DOCKET NO. 16-19 554A
DATE: April 8, 2021

REMANDED

The claim of entitlement to a higher disability rating for lumbosacral strain with degenerative arthritis of the spine and intervertebral disc syndrome (lumbar spine disorder), rated as 10 percent prior to February 8, 2016, and 20 percent thereafter is remanded. 

The claim of entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. 

REASONS FOR REMAND

The Veteran had honorable active duty service with the United States Army from April 1970 to April 1973.

In December 2019, this claim was remanded for additional development. 

1. The claim of entitlement to a higher disability rating for lumbosacral strain with degenerative arthritis of the spine and intervertebral disc syndrome (lumbar spine disorder), rated as 10 percent prior to February 8, 2016, and 20 percent thereafter is remanded.

In December 2019, the Board remanded the claim to obtain another VA examination and instructed the AOJ to send the Veteran an SSOC if the benefits were not granted to the Veteran’s satisfaction.

In October 2020, the AOJ increased the disability rating for the Veteran’s lumbosacral strain from 10 percent to 20 percent, effective February 8, 2016. The rating decision stated that this was a full grant of benefits. The Board notes that the Veteran previously asserted that he was entitled to a 60 percent rating for his lumbar spine disorder. Despite the increased disability rating, the Veteran’s appeal remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993) (where a claimant has filed a notice of disagreement as to an AOJ decision assigning a particular rating, a subsequent AOJ decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). The AOJ did not include the claim in the most recent SSOC dated in October 2020. Therefore, an SSOC must be issued pursuant to the Board’s remand. See 38 C.F.R. § 19.31 (c).

2. Entitlement to a TDIU. 

The issue of entitlement to a TDIU is intertwined with the issue of entitlement to an increased rating for the Veteran’s lumbar spine disorder. Harris v. Derwinski, 1 Vet. App. 180 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together). Therefore, further consideration of the claim of entitlement to a TDIU must be deferred.

On remand, the Veteran should be given another opportunity to complete a VA Form 21-8940.  

The matters are REMANDED for the following action:

1. The AOJ should undertake appropriate development to obtain any outstanding records pertinent to the Veteran’s claim. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e). 

2. Then, the AOJ must request that the Veteran complete and return a VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability).

3. Then, the AOJ should readjudicate the issues on appeal. If the benefit sought on appeal is not granted to the Veteran’s satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action.

 

 

S. Sorathia 

Acting Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	A. McKinley, 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.