Citation Nr: 22017691
Decision Date: 03/25/22	Archive Date: 03/25/22

DOCKET NO. 18-19 364
DATE: March 25, 2022

REMANDED

Entitlement to a rating higher than 10 percent for degenerative arthritis of the cervical spine for the period prior to December 7, 2016, is remanded.

Entitlement to a rating higher than 30 percent for degenerative arthritis of the cervical spine for the period beginning December 7, 2016, is remanded.

Entitlement to a higher rating for cervical radiculopathy of the right upper extremity currently evaluated at 40 percent disabling, beginning May 2, 2018, is remanded.

Entitlement to an initial rating higher than 30 percent for cervical radiculopathy of the left upper extremity, effective May 2, 2018, is remanded.

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

REASONS FOR REMAND

The Veteran served on active duty in the United States Navy from January 1990 to December 1999 and again from March 2003 to May 2003. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2016 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO).

While further delay is regrettable, the Board finds that additional remand is required to ensure compliance with the previous remand instructions.  Specifically, in the November 2021 remand, the Board instructed the RO to obtain relevant treatment records and readjudicate the issue of entitlement to increased staged ratings for service-connected cervical spine arthritis, to include the propriety of the assignment of a temporary total rating.  Upon remand, the RO obtained private treatment records which documented the September 2014 cervical fusion procedure.  However, the RO did not obtain any medical evidence regarding the subsequent convalescence for the cervical fusion.  

Further, in the January 2022 supplemental statement of the case (SSOC), while the RO continued the currently assigned staged ratings, the RO did not discuss whether a temporary total disability rating was proper based on the September 2014 cervical fusion and subsequent convalescence.  Accordingly, in order to properly adjudicate the severity of the Veteran's cervical spine disability and associated radiculopathy, remand is required to obtain any outstanding medical evidence related to the Veteran's convalescence period and to properly adjudicate the Veteran's claims for an increased rating, to include the propriety of the temporary total rating.  

In regard to the Veteran's claim for TDIU, the Board finds that this issue is inextricably intertwined with the remanded issues.  Thus, the Board will defer adjudication on the issue of entitlement to TDIU and will remand it with the other issues being remanded.

The matters are REMANDED for the following action:

1. Contact the Veteran and with his help, identify any and all outstanding records related to the Veteran's convalescence period subsequent to his September 2014 cervical fusion.  All relevant private records should be obtained.  Attempts to obtain this information should be documented in the record.

2. After completing any additional development deemed necessary, readjudicate the Veteran's claims for increased staged ratings related to his cervical spine disability and cervical radiculopathy of the bilateral upper extremities, to include the propriety of the assignment of a temporary total rating related to the September 2014 cervical fusion.  

3. If the benefits requested on appeal are not granted to the Veteran's satisfaction, the Veteran should be furnished a supplemental statement of the Case (SSOC) and be afforded an opportunity to respond.  

 

 

T. MAINELLI

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	C. Orie, 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.