Citation Nr: 24011007 Decision Date: 03/07/24 Archive Date: 03/07/24 DOCKET NO. 09-44 479 DATE: March 7, 2024 REMANDED Entitlement to service connection for a cervical spine disability is remanded. Entitlement to a disability rating in excess of 10 percent for residuals of the 3rd and 4th metatarsal (toes) fractures of the left foot is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1976 to April 1977. He also had subsequent Reserves membership. This matter comes before the Board of Veterans' Appeals (Board) from a December 2007 and April 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In February 2016, the Board remanded the issue of entitlement to a compensable disability rating for the residuals of fractures of the third and fourth metatarsals in the left foot for issuance of a Statement of the Case. In May 2017, the Board remanded the issue of entitlement to service connection for a cervical spine disability to afford the Veteran a Board hearing. In December 2017, the Veteran presented testimony at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the record. Most recently, the Board remanded the issues on appeal for further development in May 2021. Subsequently, in December 2022, the RO issued a rating decision that increased the rating for residuals of the 3rd and 4th metatarsal (toes) fractures of the left foot from zero percent to 10 percent effective March 21, 2014, the date of the Veteran's claim for an increased rating. In January 2023, the Veteran requested another Board hearing in connection with the current appeal. In September 2023, he testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the record. 1. Entitlement to service connection for a cervical spine disability is remanded. 2. Entitlement to a disability rating in excess of 10 percent for residuals of the 3rd and 4th metatarsal (toes) fractures of the left foot is remanded. 3. Entitlement to a TDIU is remanded. In a January 2024 letter, the Board notified the Veteran that additional relevant evidence, including VA medical records, had been associated with the claims file since the December 2022 Supplemental Statement of the Case (SSOC). The Veteran was advised that he had the right to request that the agency of original jurisdiction (AOJ) review the additional evidence, and he was provided the opportunity to submit a waiver of that right. It was further noted that, if there was no response within 45 days, it would be assumed that the Veteran did not want to have the Board decide his appeal and that the case would be remanded to the AOJ for review. On February 1, 2024, the Board received the Veteran's response that he wishes to have his case remanded back to the AOJ fore review of the additional evidence that we submitted in his appeal. Accordingly, the Board will honor the Veteran's wishes and remand the case to the AOJ for review and preparation of an SSOC. 38 C.F.R. § 19.31. The matters are REMANDED for the following action: Readjudicate the issues on appeal based on all of the evidence of record, to include any evidence obtained since the December 2022 SSOC. If any benefit sought remains denied, the Veteran should be issued an SSOC and afforded the applicable opportunity to respond. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. J. In, 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.