Citation Nr: 22014874
Decision Date: 03/15/22	Archive Date: 03/15/22

DOCKET NO. 17-11 130
DATE: March 15, 2022

REMANDED

Entitlement to a disability rating in excess of 30 percent for cervical spine degenerative disc disease is remanded.

REASONS FOR REMAND

The Veteran served active duty in the United States Army from March 2005 to March 2009. This matter comes to the Board of Veterans' Appeals (Board) on appeal of an October 2016 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO).

In August 2019, the Veteran presented testimony in a hearing before a now-retired Veterans Law Judge. As law requires the judge conducting hearings on an appeal also participate in any disposition of that appeal, the Veteran was given the opportunity to request a new hearing in correspondence dated January 12, 2022. 38 U.S.C. §§ 7102 (d), 7104 (d); 38 C.F.R. §§ 20.106(a), 20.604. The Veteran did not respond within the applicable time frame and therefore the appeal has been reassigned to another Veteran's Law Judge. See 38 C.F.R. § 20.106(b). A complete copy of the transcript has been associated with the claims file and utilized in this decision. See 38 U.S.C. § 20.712.

1. Entitlement to a disability rating in excess of 30 percent for cervical spine degenerative disc disease is remanded.

In November 2019 and August 2021, the Board remanded the issue on appeal for additional development, and the case has since been returned for further appellate review. A remand by the Board confers on the claimant a legal right to substantial compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). The Board's August 2021 remand directed the RO to undertake any development necessary to address the Veteran's contentions that he is entitled to separate ratings for radiculopathy and atrophy associated with his cervical spine disability. However, remand is necessary to address due process deficiencies, and, as such, substantial compliance was not achieved. Id. at 271.

The Veteran seeks a higher disability rating for his cervical spine degenerative disc disease. He contends the severity of his cervical spine disability warrants a higher rating, which he asserts is supported by private treatment records. The Veteran's representative previously requested the claim be remanded for consideration of all manifestations of the cervical spine disability, to include secondary service connection for any related cervical radiculopathy and atrophy. See 38 C.F.R. § 4.71a, Diagnostic Code 5237, Note (1). The Board determined the request was reasonable and consistent with the claim for secondary service connection and remanded for RO adjudication. See Chavis v. McDonough, 34 Vet. App. 1 (2021).

The Veteran was granted service connection for both cervical spine disability and right upper extremity radiculopathy in a July 2009 rating decision. The August 2021 remand aimed to determine the totality of the manifestations of the Veteran's cervical spine disability, to include whether secondary service connection is warranted for any as yet unconsidered radiculopathy and atrophy.  The Veteran was provided cervical spine and peripheral nerve examinations on October 19, 2021. An October 21, 2021 Supplemental Statement of the Case (SSOC) was issued concerning the Veteran's claim for an increased rating for cervical spine disability with mention of symptoms of right upper extremity radiculopathy. However, the SSOC lacks consideration of the left upper extremity. As such, the issue of secondary service connection for left upper extremity radiculopathy has not been adjudicated as specified by the Board's remand directives. Therefore, substantial compliance has not been achieved and remand is warranted for correction. Stegall v. West, 11 Vet. App. at 271.

Accordingly, the matters are REMANDED for the following action:

1. Undertake any additional development deemed necessary to address the Veteran's contentions that he is entitled to separate ratings for radiculopathy and atrophy of the left upper extremity/shoulder associated with his cervical spine disorder.

2. If any aspect of the claim remains denied, furnish to the Veteran and his representative an appropriate SSOC that includes a review of all evidence received since the previous adjudication, to include VA treatment records and any new evidence submitted by the Veteran.

 

 

Bethany L. Buck

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	T.N. Chapman

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.