Citation Nr: 22018455
Decision Date: 03/29/22	Archive Date: 03/29/22

DOCKET NO. 16-54 749
DATE: March 29, 2022

REMANDED

A rating higher than 50 percent for an acquired psychiatric disorder is remanded.

A rating higher than 20 percent for a low back disability for the period prior to August 24, 2020, and higher than 40 percent thereafter is remanded.

A rating higher than 10 percent for right lower extremity radiculopathy for the period prior to August 28, 2018, and higher than 20 percent thereafter is remanded.

A rating higher than 10 percent for left lower extremity radiculopathy for the period prior to February 18, 2019, and higher than 20 percent thereafter is remanded.

A total disability rating based on individual unemployability is remanded.

REASONS FOR REMAND

The Veteran served honorably on active duty in the United States Army from March 1983 to March 1990. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO).  The Board has remanded the issues on appeal for additional development in November 2018, July 2020, and August 2021.

In an October 2021 letter, the Veteran reported that he had received the September 2021 Supplemental Statement of the Case (SSOC) the day prior to composing the letter, that the 30 days period to respond was about to expire, and that he had additional evidence that he was submitting with his letter.  In response to mailing delays and to protect the best interests of claimants, the Veterans Benefits Administration (VBA) extended the response period by 90-calendar days for claimants with letters dated between July 31, 2021 and December 31, 2021.  

As the Veteran's SSOC was issued in September 2021, before the expiration of the 90-day extension period elapsed, the Board finds there was a denial of due process of law.  Accordingly, remand is necessary to protect the Veteran's due process rights by ensuring compliance with procedural safeguards providing for an extension of time to submit lay and medical evidence.  38 C.F.R. § 19.52(c); see Bernard v. Brown, 4 Vet. App. 384, 394 (1993).

The matters are REMANDED for the following actions:

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1. Provide the Veteran the opportunity to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

2. Readjudicate the issues on appeal.  If the benefits sought are not granted to the Veteran's satisfaction, send the Veteran and his representative an SSOC and provide an opportunity to respond.  If necessary, return the case to the Board for further appellate review.

 

 

JOHN Z. JONES

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Michael Chandeck, 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.