Citation Nr: 21029394
Decision Date: 05/13/21	Archive Date: 05/13/21

DOCKET NO. 11-26 530
DATE: May 13, 2021

REMANDED

Entitlement to an evaluation in excess of 40 percent beginning July 30, 2019, an evaluation in excess of 20 percent prior to July 30, 2019, and an initial evaluation in excess of 10 percent prior to February 21, 2014, for lumbar degenerative disc disease, status post lumbar fusion and disc surgery, is remanded. 

Entitlement to an evaluation in excess of 40 percent for radiculopathy of the right lower extremity prior to June 17, 2019, and an evaluation in excess of 20 percent beginning June 17, 2019, is remanded.

REASONS FOR REMAND

The Veteran had active service with the Army from January 1966 to January 1968. 

The matter is before the Board of Veterans' Appeals (the Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).  

In August 2015, the Veteran testified in a hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is in the evidence of record.  

In December 2015, July 2016, and May 2017, the Board remanded these claims for additional development.

In December 2019, the Board denied an evaluation in excess of 40 percent beginning July 30, 2019, an evaluation in excess of 20 percent prior to July 30, 2019, and an initial evaluation in excess of 10 percent prior to February 21, 2014, for lumbar degenerative disc disease, status post lumbar fusion and disc surgery; denied an initial evaluation in excess of 40 percent for radiculopathy of the right lower extremity prior to June 17, 2019, and an evaluation in excess of 20 percent beginning June 17, 2019; and granted an evaluation of 20 percent, but no higher, for radiculopathy of the left lower extremity beginning June 17, 2019.  The Veteran subsequently appealed to the United States Court of Appeals for Veterans Claims (the Court).  

In a December 2020 order, the Court granted the parties' Joint Motion for Partial Remand (JMPR), vacating the Board's December 2019 decision regarding the denial of the increased rating claims for lumbar degenerative disc disease, status post lumbar fusion and disc surgery and radiculopathy of the right lower extremity.  The appeal was remanded to the Board for readjudication consistent with the JMPR.  The Court noted that pursuant to the December 2015 Board remand, the issuance of a supplemental statement of the case (SSOC) was required if any benefit sought on appeal remained denied.  An SSOC was issued in December 2017.  Subsequently, VA examinations were associated with the claims file in August 2019 regarding his back conditions and peripheral nerve conditions.  However, an SSOC was not issued.      

As such, remand is warranted for the Agency of Original Jurisdiction (AOJ) to consider evidence received after the December 2017 SSOC and issuance of another SSOC.  See 38 §§ C.F.R. 19.31, 19.37, 20.1304.    

The matters are REMANDED for the following action:

1. After completion of any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations.  If any benefit sought remains denied, the Veteran and his representative should be furnished with a SSOC and be afforded the opportunity to respond.  Thereafter, the case should be returned to the Board for further consideration.

 

 

MICHAEL LANE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	K.L. Byers

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.