BACK DISABILITY

Summary

The veteran, who served in the Army from December 1982 to November 1991, including service in the southwest Asia theater of operations during the Persian Gulf War, appeals the denial of an increased rating for a back disability and an earlier effective date for a TDIU. The Board granted an initial rating of 40 percent for the back disability, effective August 26, 2022, finding that while objective evidence did not fully support the veteran's subjective complaints of limited range of motion prior to that date, applying the benefit of the doubt warranted the higher evaluation. The Board also granted a 20 percent rating for left lower extremity radiculopathy, effective August 26, 2022, based on moderate symptoms, but denied a separate rating for this condition prior to that date, finding insufficient objective evidence. The claim for an earlier effective date for TDIU prior to June 28, 2014, was remanded for further development, as the record contained conflicting information regarding the reasons for the veteran's employment difficulties, including potential contributions from service-connected disabilities, substance abuse, and other factors.

Rationale

Forward flexion limited to 30 degrees; Pain on weight bearing and motion; Functional loss due to pain, stiffness, limited range of motion

Full Decision Text

Citation Nr: 23039705
Decision Date: 07/19/23	Archive Date: 07/19/23

DOCKET NO. 18-39 080
DATE: July 19, 2023

ORDER

Throughout the rating period on appeal, an initial rating of 40 percent, but no higher, for a back disability is granted.

Entitlement to a disability rating of 20 percent, but no higher, effective July 31, 2018, for left lower extremity radiculopathy is granted.

Entitlement to a separate rating for left lower extremity radiculopathy prior to July 21, 2018, is denied.

REMANDED

Entitlement to an earlier effective date prior to June 28, 2014, for an award of a total disability rating based on individual employability (TDIU) is remanded.

FINDINGS OF FACT

1. Throughout the rating period on appeal, the Veteran's back disability is manifested by forward flexion of the thoracolumbar spine 30 degrees or less.

2. The Veteran's left lower extremity radiculopathy is manifested by moderate symptoms.

3. The Veteran's record does not indicate she was diagnosed with left lower extremity radiculopathy prior to July 31, 2018.

CONCLUSIONS OF LAW

1. Throughout the rating period on appeal, the criteria for entitlement to a rating of 40 percent, but no higher, for a back disability have been met.  38 U.S.C. § § 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5242.

2. The criteria for a rating of 20 percent, but no higher, for left lower extremity radiculopathy are met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, DC 8526.

3. The criteria for a separate rating for left lower extremity radiculopathy prior to July 31, 2018, are not met.  38 U.S.C. §§ 1110, 1154, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. 4.124a, DC 8526.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service from December 1982 to November 1991, including in the southwest Asia theater of operations during the Persian Gulf War.

This appeal has a long and complex procedural history.  It comes before the Board of Veterans' Appeals (Board) on appeal from July 2015, October 2016, and September 2018 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO).

The Board denied an increased rating for the Veteran's back and an earlier effective date for the grant of a TDIU in a June 2020 decision.

The Veteran appealed the matters to the Court of Appeals for Veterans Claims ("the Court").  In a January 2022 Memorandum Decision, the Court vacated and remanded the matters.

In August 2022, the Board remanded the currently appealed claims to the Agency of Original Jurisdiction (AOJ) for additional development.  A review of the claims file shows that there has been substantial compliance with the Board's remand directives.  The Board directed that the AOJ schedule the Veteran for examination to determine the current nature and severity of her service-connected disabilities and obtain a retrospective opinion concerning the nature and severity of these disabilities.  This examination and opinion were obtained and associated with the claims file in September 2022.  See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).

In a September 2022 rating decision, the RO assigned a higher initial 40 percent rating effective August 26, 2022, for the Veteran's service-connected lumbar spondylosis.  In an October 2022 rating decision, the RO assigned, in pertinent part, a higher 20 percent rating effective August 26, 2022, for the Veteran's service-connected radiculopathy of the left lower extremity.  Thus, these claims have been recharacterized as stated above.

In April 2023, the Veteran had a hearing before the
 remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).

In a September 2022 rating decision, the RO assigned a higher initial 40 percent rating effective August 26, 2022, for the Veteran's service-connected lumbar spondylosis.  In an October 2022 rating decision, the RO assigned, in pertinent part, a higher 20 percent rating effective August 26, 2022, for the Veteran's service-connected radiculopathy of the left lower extremity.  Thus, these claims have been recharacterized as stated above.

In April 2023, the Veteran had a hearing before the undersigned.  A transcript has been associated with the file.

Disability evaluations (ratings) are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule).  38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.

In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition.  The Board has a duty to acknowledge and consider all regulations that are potentially applicable.  Schafrath v. Derwinski, 1 Veteran. App. 589 (1991).  The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required.  38 C.F.R. §§ 4.1, 4.2, 4.10. 

Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned.  In the selection of code numbers assigned to disabilities, injuries will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined.  With injuries and diseases, preference is to be given to the number assigned to the injury or disease itself; if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen.  38 C.F.R. § § 4.27.  

The Veteran contends her back disability is worse than indicated by her 10 percent disability rating prior to August 26, 2022, and 40 percent thereafter.  She also contends her left lower extremity radiculopathy warrants a rating in excess of 10 percent prior to August 26, 2022 and 20 percent thereafter.  Lastly, she contends she should be afforded a separate rating for her left lower extremity radiculopathy prior to July 21, 2018.

During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id.  If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g).  If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110.  Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021, and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied.  

Preliminarily, the Board notes the Veteran says VA has not considered all of her back disabilities.  In this decision, the Board has broadly characterized the Veteran's lumbar back disability to be a back disability, encompassing all possible back diagnoses.  However, while the Veteran has said she had an antalgic gait due to her bilateral knee disability, the Board notes that her knee symptoms are not considered in determining the severity of her back disability.  Specifically,
, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021, and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied.  

Preliminarily, the Board notes the Veteran says VA has not considered all of her back disabilities.  In this decision, the Board has broadly characterized the Veteran's lumbar back disability to be a back disability, encompassing all possible back diagnoses.  However, while the Veteran has said she had an antalgic gait due to her bilateral knee disability, the Board notes that her knee symptoms are not considered in determining the severity of her back disability.  Specifically, the Veteran has said she had an antalgic gait due to her knees, noted back in the 1990s.  Examinations from April 1996 and October 1997 note problems with the Veteran's gait but back symptoms were not mentioned. While her knees may indeed have caused overuse of the back, this is an etiology question and not a factor in determining the severity of her back condition.  (See April 2023 hearing transcript.)

Prior to the regulatory change, DC 5242 provided a 20 percent rating for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion not greater than 120 degrees or muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.

A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine.

A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine.

A 100 percent rating is warranted for unfavorable ankylosis of the entire spine.  

After the regulation changes effective February 7, 2021, the rating criteria remain the same.  

The Veteran's left lower radiculopathy is rated under DC 8526.

Under DC 8526, mild incomplete paralysis of the crural (femoral) nerve is rated as 10 percent disabling, moderate incomplete paralysis is rated as 20 percent disabling, severe incomplete paralysis is rated as 30 percent disabling, and complete paralysis is rated as 40 percent disabling.

Words such as "severe," "moderate," and "mild" are not defined in the Rating Schedule.  Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6.

The term "incomplete paralysis," with this and other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration.  When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree of impairment.  The ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings are combined with application of the bilateral factor.  38 C.F.R. § 4.124a.

The Veteran has stated many times throughout her appeal that she had back pain going back to the 1990s, stemming from her knee disability.  (See e.g. August 2005, August 2006, January 2007, March 2015 statements.)  The Veteran also indicated due to the strain on her back, she has been unable to work.  (See e.g. May 2008 statement.)  The Veteran also indicated she began to experience radiculopathy symptoms in 2005 and that from 2005 to 2009, the radiculopathy was "really bad" and affected her mechanical ability so she finally went to a doctor in 2011.  (See e.g. April 2023 hearing transcript.)

The Veteran had an examination for her back in December 2011.  The Veteran said she had progressive onset of back pain in 2000 and had flare ups which decreased her ability to walk and stand, and she was unable to sit or drive for too long. 

The Veteran had another examination for her back in July 2018.  The Veteran reported symptoms of throbbing pain in the left side of her back, thigh numbness, increased pain with prolonged sitting, and that she used a cane for stability.  The examiner reported the Veteran had mild left lower extremity radiculopathy.

Here, the Board understands these examinations are inadequate for many reasons, to include that it does not comply with the directives set forth in Correia v. McDonald
 examination for her back in December 2011.  The Veteran said she had progressive onset of back pain in 2000 and had flare ups which decreased her ability to walk and stand, and she was unable to sit or drive for too long. 

The Veteran had another examination for her back in July 2018.  The Veteran reported symptoms of throbbing pain in the left side of her back, thigh numbness, increased pain with prolonged sitting, and that she used a cane for stability.  The examiner reported the Veteran had mild left lower extremity radiculopathy.

Here, the Board understands these examinations are inadequate for many reasons, to include that it does not comply with the directives set forth in Correia v. McDonald, 28 Vet. App. 158, 170 (2016) and Sharp v. Shulkin, 29 Vet. App. 26, (2017).  (See also February 2022 CAVC Decision.) However, the Board has reviewed them for any potentially favorable evidence to the Veteran.

The Veteran had another examination for her back in August 2022.  At this examination, the Veteran's complaints were "throbbing pain and stiffness in the back."  The VA examiner reviewed the Veteran's claims file, including service treatment records and post-service VA treatment records.  The Veteran reported weekly moderate to severe flare-ups of low back pain which lasted four to six hours at a time.  She experienced functional loss or impairment which she described as "difficulty with heavy lifting, bending, [and] prolonged walking and standing."  Range of motion testing showed forward flexion to 40 degrees with pain on weight bearing, non-weight bearing, and active and passive motion, and causing functional loss due to pain, stiffness, and a limited range of motion.  Repetitive range of motion testing showed forward flexion to 35 degrees with pain.  The VA examiner estimated the Veteran's range of motion on repeated use over time to be 30 degrees of forward flexion and 25 degrees of forward flexion on flare-ups of low back pain.  Physical examination showed no objective evidence of crepitus, no tenderness to palpation, no muscle spasm or guarding, 5/5 muscle strength, no muscle atrophy, normal sensation throughout except for decreased sensation in the left lower leg/ankle and left foot/toes, negative straight leg raising on the right leg, positive straight leg raising on the left leg, moderate intermittent pain of the left lower extremity, moderate paresthesias and/or dysesthesias of the left lower extremity, moderate numbness of the left lower extremity, and no ankylosis, other neurologic abnormalities, or intervertebral disc syndrome.  The Veteran regularly used a walker.  The Veteran also was found to have moderate symptoms of left lower extremity radiculopathy but no ankylosis.

In September 2022, in accordance with the previous Board remand, a retrospective opinion was sought.  However, the examiner stated that she could not provide this opinion without resorting to mere speculation.  The rationale for this opinion was that "there are no records showing a quantitative baseline or any objective range of motion during passive, active, or during flare-ups to render an opinion."  The Court has held that medical opinions using the "mere speculation" language, without more, generally are disfavored because they are inconclusive.  See Warren v. Brown, 6 Vet. App. 4, 6 (1993); Sklar v. Brown, 5 Vet. App. 104, 145-6 (1993).  The Court has explained that opinions which contain the "mere speculation" language, without more, amount to 'nonevidence' neither for nor against the claim.  See Bloom v. West, 12 Vet. App. 185 (1999) (holding that a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty).  

The Board has also reviewed the Veteran's treatment records.  In June 2006, the Veteran's forward flexion was reported to be to 75 degrees and in July 2006, the Veteran's forward flexion was noted to be to 90 degrees.  Medical treatment records throughout the years also indicate the Veteran has chronic intermittent back pain.  (See e.g. April 2008, July 2011 treatment records.)  Images taken in January 2012 of the Veteran's back showed mild degenerative changes. In an April 2013 Gulf War examination, the Veteran self-reported that she had left lower extremity radiculopathy.  However, this diagnosis was not confirmed by a doctor.

The Board has considered both the subjective and objective evidence of record.  The Board notes the objective evidence of record does
 Veteran's forward flexion was reported to be to 75 degrees and in July 2006, the Veteran's forward flexion was noted to be to 90 degrees.  Medical treatment records throughout the years also indicate the Veteran has chronic intermittent back pain.  (See e.g. April 2008, July 2011 treatment records.)  Images taken in January 2012 of the Veteran's back showed mild degenerative changes. In an April 2013 Gulf War examination, the Veteran self-reported that she had left lower extremity radiculopathy.  However, this diagnosis was not confirmed by a doctor.

The Board has considered both the subjective and objective evidence of record.  The Board notes the objective evidence of record does not indicate the Veteran's back disability was not limited to 30 degrees or less of forward flexion prior to August 26, 2022.  However, the Board has weighed this lack of objective evidence with the copious statements from the Veteran saying she had back pain, trouble with mobility, including going from a sitting to standing position, that she had trouble walking, and that she had to use assistive devices.  Applying the benefit of the doubt, the Board finds the Veteran's back disability warrants a higher evaluation effective July 16, 2006, the date of her initial claim.  However, a higher rating is not warranted for any period on appeal as the Veteran's record does not indicate she has ankylosis in her back and this condition is not something the Veteran would be competent to report as it is a specific medical condition that requires a specific diagnosis.

Similarly, the Board has considered whether the Veteran's left lower extremity warrants a higher evaluation and a separate evaluation.  In this case, the Board finds a higher, 20 percent rating is warranted for moderate symptoms effective July 31, 2018, the date her radiculopathy was first reported by a medical professional.  The Veteran said she had throbbing pain, trouble with her gait, and numbness in her leg.  The Board has, again, balanced the Veteran's statements with the objective evidence of record.  The objective evidence of record does not indicate the Veteran had moderate left lower extremity radiculopathy prior to July 31, 2018.  While the Veteran has said her records indicate she had diagnosed radiculopathy in the 1990s, the Board did not find records stating such.  (See e.g. April 2023 hearing transcript.) However, the Board does not find a higher, 30 percent rating, is warranted for the Veteran's left lower extremity radiculopathy.  Having already granted the benefit of the doubt to the Veteran to afford her a higher 20 percent rating, the Board does not find the evidence in approximate balance that her symptoms are severe.  While the Veteran has discussed the symptoms of her left lower extremity radiculopathy, the Veteran's objective record simply does not indicate any of her individual symptoms of left lower extremity radiculopathy are severe.  Therefore, the Board finds a 20 percent rating most appropriately balances the evidence of record.

Turning to the Veteran's contention that she should be afforded a separate rating for her left lower extremity radiculopathy prior to July 31, 2018, the Board does not find such would be appropriate as the record does not indicate a diagnosis by a medical professional of this condition prior to that date.

Neither the Veteran nor her representative has identified any other rating criteria that would provide a higher rating or an additional rating.  However, the potential applications of various provisions of Title 38 of the Code of Federal Regulations (2016) have been considered as required by the holding of the Court in Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991).  

Regarding the claims above, the Board acknowledges the Veteran's statements that she believes her conditions are worse than indicated by their current ratings.  The Board also understands the Veteran continues to seek treatment for her medical conditions and that her conditions continue to give her problems and cause her distress.  While the Veteran is competent to opine on the subjective symptoms of her disabilities, she is not competent to opine on medical issues, such as diagnosis of medical conditions, such as those discussed above.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  As discussed above, the Board has weighed the Veteran's lay statements against the objective evidence and has afforded great probative value to her statements, resulting in the grant of the increased ratings discussed above.

Regarding all the above, the Board has considered the applicability of the benefit of the doubt doctrine.  Except as otherwise noted, because the evidence is not in approximate balance or nearly equal, the benefit of the doubt doctrine does not apply
 is competent to opine on the subjective symptoms of her disabilities, she is not competent to opine on medical issues, such as diagnosis of medical conditions, such as those discussed above.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  As discussed above, the Board has weighed the Veteran's lay statements against the objective evidence and has afforded great probative value to her statements, resulting in the grant of the increased ratings discussed above.

Regarding all the above, the Board has considered the applicability of the benefit of the doubt doctrine.  Except as otherwise noted, because the evidence is not in approximate balance or nearly equal, the benefit of the doubt doctrine does not apply.  See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990), Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc).

REASONS FOR REMAND

Entitlement to a TDIU prior to June 28, 2014

Prior to June 28, 2014, the Veteran met the schedular criteria for a TDIU on July 16, 2006.  At that time, the Veteran's was rated for the following:

"	A mental health disability, rated as 70 percent disabling,

"	A back disability, rated as 40 disabling,

"	Bilateral auricle keloids, rated as 30 percent disabling,

"	A bilateral knee disability, each rated as 20 percent disabling,

"	Left lower extremity radiculopathy, rated as 20 percent disabling

"	Rhinitis, rated as 10 percent disabling, and 

"	Perirectal abcess, rated as noncompensable.

The Veteran contends she is entitled to a TDIU prior to her current effective date of June 28, 2014.  While the Veteran met the schedular criteria for a TDIU on July 16, 2006, it is unclear from the Veteran's file what specific effective date she is asking for or when she stopped being able to perform gainful employment due to her service-connected disabilities.  

In October 2010, the Veteran reported she was able to work as a kitchen manager and had previously stopped working for three years because of her limitations but that she did not have to be on her feet as much at her current job.  (See October 2010 examination.)  However, in March 2011, the Veteran said she quit her job because other employees were "against her."  She stated that she worked briefly as a security officer and then found her current job as a cook for the Salvation Army and had been employed full-time for less than one year.  In this examination, the Veteran also said that she quits her jobs after two to three years because she did not feel accepted and because she did not want to get fired.  (See March 2011 examination.)  

In December 2011, the Veteran said that she had been fired from her job as a cook in September 2011 due to poor performance and had been unemployed since.  (See December 2011 examination.)

These examinations make it clear that the Veteran has had difficulty holding a full-time job.  However, these examinations also indicate the Veteran's inability to hold a job was not necessarily due to her service-connected disabilities, but rather, were due to other factors.

However, other records, including the Veteran's lay statements, indicate her employment problems are due to her service-connected disabilities.  For example, in a September 2012 treatment record, the Veteran was unable to keep a job due to her physical limitations and her desire to isolate herself.  The Veteran also reported she was laid off from her job at the Salvation Army from February 2010 to October 2011 because of poor performance due to fatigue, pain, and forgetfulness. (See March 2013 examination.)

In June 2007, the Veteran reported she had not worked in more than a year because of her knees that affected her back.  (See June 2007 examination.)  In a January 2006 examination, the Veteran said she was unemployed due to her knees (see also January 2007 Correspondence) and in July 2006, she said she was recently terminated and was having difficulty with her mental health.  In September 2006, the Veteran said she was recently fired from another job because of tardiness at work.

An April 2013 Gulf War examiner noted the Veteran had last worked two years earlier in food service and had retired due to depression that prevented both physical and sedentary employment.

There is also indication that the Veteran's substance abuse problems may have been contributing to her employment problems. 
 because of her knees that affected her back.  (See June 2007 examination.)  In a January 2006 examination, the Veteran said she was unemployed due to her knees (see also January 2007 Correspondence) and in July 2006, she said she was recently terminated and was having difficulty with her mental health.  In September 2006, the Veteran said she was recently fired from another job because of tardiness at work.

An April 2013 Gulf War examiner noted the Veteran had last worked two years earlier in food service and had retired due to depression that prevented both physical and sedentary employment.

There is also indication that the Veteran's substance abuse problems may have been contributing to her employment problems.  In October 2013, the Veteran was noted to have agreed to seek substance abuse treatment and since she was a VA employee, it would be beneficial to seek treatment outside VA.  The Veteran was struggling with addiction, spent all her money on drugs, and she had to stop before she lost her job.

The Board finds more evidence is needed in order to determine if and on what date the Veteran may be entitled to an earlier effective date for a TDIU.  The RO should seek to obtain from the Veteran information regarding her employment information prior to June 28, 2014.  This includes information from her previous employers regarding the specific dates of employment and reason for her leaving or being terminated.  The Board also finds tax statements from the Veteran may be helpful in determining her work history prior to June 28, 2014.  Therefore, the RO should make attempts to obtain them also.  

The matter is REMANDED for the following actions:

1. The RO should invite the Veteran to submit any information she believes would be helpful in determining whether she is entitled to an earlier effective date for a TDIU.  The RO should invite the Veteran to submit another VA Form 21-8940.

2. The RO should make reasonable attempts (at least two) to contact past employers to determine the Veteran's dates of employment.  All attempts and negative responses should be associated with the file.

3. The RO should make reasonable attempts (at least two) to obtain from the Veteran past tax returns showing income levels from 2006 to 2014.  All attempts and negative responses should be associated with the file.

4. Ask the Veteran to provide SSA Earnings Record/Statement from 2006 to 2014.  

5. After completing the above actions, and any other necessary development, the claim must be re-adjudicated.  If any benefit on appeal remains denied, a Supplemental Statement of the Case (SSOC) must be provided to the Veteran and her representative.  After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.  

 

 

S. Merrick

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Snoparsky, A.

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.