Citation Nr: 21027611
Decision Date: 05/06/21	Archive Date: 05/06/21

DOCKET NO. 18-53 224A
DATE: May 6, 2021

REMANDED

Entitlement to an effective date earlier than October 21, 2019 for the award of a 40 percent rating for lumbosacral strain (lumbar strain) is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the United States Navy from July 1989 to September 1992.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).  

Initially, in July 2019, the Board remanded the matter to the Agency of Original Jurisdiction (AOJ) for development.  Upon returning to the Board, this claim, among others, was denied in a January 2020 decision, and the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court).  In December 2020, the Court granted a Joint Motion for Partial Remand (JMR) in which the parties agreed to vacate the January 2020 decision pertaining specifically to the issue noted above and remanded the matter to the Board.  

As part of the JMR, the Board's January 2020 decision with regards to: 1) entitlement to an initial rating in excess of 10 percent for lumbar strain prior to October 21, 2019, 2) entitlement to an initial rating in excess of 40 percent for lumbar strain since October 21, 2019 for rating purposes, and 3) entitlement to an initial rating in excess of 10 percent for left knee strain, were abandoned by the parties and are no longer at issue.  Furthermore, the issue of service connection for radiculopathy of the right lower extremity was granted by the Board in its January 2020 decision, and the parties agreed not to the disturb that decision.  The JMR also stated that the issue of entitlement to a total rating based upon individual unemployability (TDIU) was in remand status and therefore was outside the Court's jurisdiction.  

In a June 2020 rating decision, the AOJ granted a TDIU effective January 9, 2020, which is the date after the Veteran stopped working full time.  In his VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability), the Veteran specifically stated that the last date of employment was January 8, 2020.  This represents a full grant of benefits and therefore the issue of an earlier effective date for a TDIU is not before the Board.  

The remaining issue before the Board, as agreed to by the parties, is whether the Veteran is entitled to "an effective date earlier than October 21, 2019 for an initial rating in excess of 40 percent for lumbar strain."  The parties agreed that the Board must remand the issue to the AOJ for adjudication.  

Consistent with the JMR, the Board finds that a remand is necessary for additional development by the AOJ.  

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The matters are REMANDED for the following action:

After any additional indicated development has been completed, adjudicate the issue of entitlement to "an effective date earlier than October 21, 2019 for an initial rating in excess of 40 percent for lumbar strain."  If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond.  If necessary, return the case to the Board for further appellate review.

 

 

D. Martz Ames

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. Mathew

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.