Citation Nr: 22013708
Decision Date: 03/10/22	Archive Date: 03/10/22

DOCKET NO. 17-20 217
DATE: March 10, 2022

REMANDED

Entitlement to an increased rating for a cervical spine disability, currently rated as 20 percent disabling, is remanded.

Entitlement to an increased rating for a lumbar spine disability, currently rated as 10 percent disabling, is remanded.

Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded.

REASONS FOR REMAND

These matters were previously before the Board of Veterans' Appeals (Board) in April 2020, when they were remanded for further development.  At that time, the Board also remanded the issues of service connection for neurological impairment of the bilateral upper extremities and entitlement to a temporary total rating for convalescence for a September 2011 lumbar spine surgery.  The record reflects the Agency of Original Jurisdiction (AOJ) granted service connection for neurological impairment of the bilateral upper extremities and entitlement to a temporary total rating for convalescence for a September 2011 lumbar spine surgery following the Board's April 2020 remand, constituting a full grant of the benefits sought on appeal with respect to those issues.  In April 2021, the AOJ issued a supplemental statement of the case for the remaining issues on appeal.  After the issuance of the April 2021 SSOC, the AOJ developed additional relevant evidence regarding the issues on appeal, to include new cervical and lumbar spine examinations.  In January 2022, the Veteran submitted an explicit request for his appeal to be remanded so the AOJ can initially consider the newly developed evidence.  As a result, the issues on appeal must be remanded to the AOJ to ensure the Veteran is afforded due process.  Disabled Am. Veterans v. Sec'y of Veterans Affairs, 327 F.3d 1339, 1347 (Fed. Cir. 2003)

The matters are REMANDED for the following action:

Reconsider the issues on appeal based on all the evidence of record, to include, but not limited to, evidence received after the April 2021 SSOC, taking any additional development steps deemed necessary.  If any benefit sought on appeal remains denied, issue an updated SSOC and return the matter to the Board if otherwise in order.

 

 

M. HYLAND

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	L. S. Kyle, 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 This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.