Citation Nr: 21030444
Decision Date: 05/18/21	Archive Date: 05/18/21

DOCKET NO. 16-28 513
DATE: May 18, 2021

REMANDED

Whether the reduction in rating from 20 percent to 10 percent for degenerative arthritis of lumbar spine with posterolisthesis, effective December 1, 2011, was proper, is remanded. 

Entitlement to a rating in excess of 10 percent prior to December 16, 2014, and in excess of 40 percent thereafter, for degenerative arthritis of lumbar spine with posterolisthesis, is remanded.

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded.

REASONS FOR REMAND

The Veteran had active military service from August 2001 to February 2002 and July 2002 to February 2004.  These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision issued by the VA Regional Office (RO).   

1. Reduction

In October 2011, the Veteran submitted a timely notice of disagreement with a September 2011 rating decision which reduced the rating for the Veteran's degenerative arthritis of lumbar spine with posterolisthesis from 20 percent to 10 percent, effective December 1, 2011.  A review of the record shows that the Veteran has not been issued a statement of the case addressing that issue.  Where a notice of disagreement has been filed with regard to an issue, and a statement of the case has not been issued, the appropriate Board action is to remand for issuance of a statement of the case.  Manlincon v. West, 12 Vet. App. 238 (1999).

2. Increased Rating and TDIU 

The Board notes that the issues of entitlement to an increased rating for service-connected degenerative arthritis of lumbar spine with posterolisthesis and a TDIU are inextricably intertwined with the claim remanded herein.  Harris v. Derwinski, 1 Vet. App. 180, 183 (1991).  Hence, a determination on the matters are deferred.

The matters are REMANDED for the following action:

1. Issue a statement of the case on the issue of whether the reduction in rating from 20 percent to 10 percent for degenerative arthritis of lumbar spine with posterolisthesis, effective December 1, 2011, was proper.  Inform the Veteran of the requirements to perfect an appeal of those issues.  If the Veteran perfects an appeal, return the matter to the Board.

2. Conduct any additional development determined to be warranted, to include obtaining a current VA Form 21-8940 for the claim of entitlement to a TDIU.

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3. Then, readjudicate the appeal.  If the decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response.  Then, return the case to the Board.

 

 

R. Erdheim

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	D. Ware, 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.