Citation Nr: 22012345
Decision Date: 03/03/22	Archive Date: 03/03/22

DOCKET NO. 16-61 972
DATE:  March 3, 2022

REMANDED

Entitlement to an initial rating in excess of 10 percent for right lower extremity (RLE) neurogenic thoracic outlet syndrome and sciatic nerve radiculopathy is remanded.

Entitlement to an initial compensable rating prior to July 29, 2019, and to a rating in excess of 10 percent thereafter, for bilateral shoulder residual surgical scars is remanded.

Entitlement to an initial rating in excess of 10 percent prior to March 29, 2019, and to a rating in excess of 20 percent thereafter for degenerative arthritis of the cervical spine with intervertebral disc syndrome (IVDS) (hereinafter "neck disability"), is remanded.

REASONS FOR REMAND

The Veteran had active air service from August 1994 to August 2014.

This case comes before the Board of Veterans' Appeals (Board) on appeal of a May 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). 

The Veteran testified at a hearing before the undersigned Veterans Law Judge in April 2019. A transcript of that hearing is of record. 

This case was previously before the Board in September 2019, at which time the issues on appeal were remanded for additional development. This case has been returned for further appellate action.

In the September 2019 remand, the Board directed additional development to determine the current level of severity of all impairment resulting from the Veteran's RLE disability, bilateral shoulder scars, and neck disability. Following the directed development, the Board instructed that readjudication of the appeal should be performed and if a decision was adverse to the Veteran, a supplemental statement of the case should be issued. 

A review of the record shows that the Veteran was afforded additional VA examinations in September 2020. A supplemental statement of the case was issued in September 2020. However, the Veteran was then afforded additional VA examinations for his RLE disability, his bilateral shoulder scars, and his neck disability in November 2021. Following those examinations, a supplemental statement of the case was not issued.

Therefore, the Board finds that the development conducted does not adequately comply with the September 2019 Board remand directives. Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessitates remand for corrective action. Stegall v. West, 11 Vet. App. 268 (1998). 

Accordingly, the appeal must be remanded for the issuance of a supplemental statement of the case before the Board proceeds with further appellate action.

The matters are REMANDED for the following action:

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Readjudicate the appeal, to specifically include consideration of all evidence added to the record since the issuance of the September 2020 supplemental statement of the case. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board.

 

 

Kristin Haddock

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Byrd, Associate 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.