Citation Nr: 1301100 Decision Date: 01/10/13 Archive Date: 01/16/13 DOCKET NO. 08-03 258 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for residuals of a back injury. 2. Entitlement to service connection for a psychiatric disability, to include depression, to include as secondary to a back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Kessel, Counsel INTRODUCTION The Veteran served on active duty from October 1963 to October 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The case was most recently before the Board in April 2012. At that time, the Board reopened a previously denied claim of service connection for residuals of a back injury. The Board remanded the reopened claim and the claim of service connection for a psychiatric disability to the RO for additional development and consideration. In the April 2012 decision, the Board also referred claims of service connection for sleep apnea, posttraumatic stress disorder, and a neck injury to the RO for appropriate action. It does not appear that these issues have been addressed and they are again referred to the RO. The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND A remand by the Board confers on a veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). If the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Stegall, 11 Vet. App. at 271. The Board's April 2012 remand instructed the RO to afford the Veteran VA examinations in connection with the two claims on appeal. These were conducted in May 2012 and the reports included medical opinions as to the nature and etiology of the two claimed disabilities. The April 2012 remand further instructed the RO to adjudicate the reopened claim of service connection for residuals of a back injury in the first instance and to readjudicate the claim of service connection for a psychiatric disability that was also on appeal. If either of the benefits sought remain denied, the RO was to furnish a supplemental statement of the case to the Veteran and his representative before the appeal was to be returned to the Board. As to the psychiatric disability claim, the Appeals Management Center readjudicated the claim, denied it, and furnished an supplemental statement of the case to the Veteran and his representative in November 2012. However, no similar adjudication was performed for the back injury claim. The issue was not included in the November 2012 supplemental statement of the case or any other supplemental statement of the case, and there is no indication the claim was granted. The May 2012 VA examination report pertaining to the back injury claim represents additional pertinent evidence received by the RO after the most recent statement of the case (SOC) for that claim, which was issued in December 2007. Because this evidence is pertinent and it was received prior to transfer of the record to the Board, an supplemental statement of the case is required. See 38 C.F.R. §§ 19.31, 19.37 (2012). The Veteran submitted a statement in November 2012 in which he indicated that he would waive review by the RO of any additional evidence that was submitted at a later time. See 38 C.F.R. § 20.1304(c) (2012). The waiver process of section 20.1304(c) only applies to evidence submitted following notification of certification of the transfer of records to the Board. There is no similar waiver process in the regulations for evidence received prior to transfer of records to the Board. Thus, the claim of service connection for residuals of a back injury must be remanded for the issuance of an supplemental statement of the case in compliance with the regulations and the Board's April 2012 remand instructions. See Stegall, 11 Vet. App. at 271. The Veteran has primarily attributed his claimed psychiatric disability of depression directly to his military service. However, another theory of entitlement has been deemed raised by the record in that of secondary service connection to his claimed residuals of a back injury. As such, the Board finds that the psychiatric disability claim is inextricably intertwined with the Veteran's back injury claim being remanded herein. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (finding that where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). Accordingly, the Board finds that remanding the Veteran's claim of service connection for a psychiatric disability is required so that it may be contemporaneously adjudicated with his claim of service connection for residuals of a back injury. Accordingly, this case is remanded for the following action: The RO must adjudicate the issue of entitlement to service connection for residuals of a back injury and readjudicate the issue of entitlement to service connection for a psychiatric disability. If either of the benefits sought on appeal remains denied, the Veteran and his representative must be furnished an supplemental statement of the case and be given the opportunity to respond thereto. The supplemental statement of the case must include consideration of any additional evidence added to the claims file, including the May 2012 VA examination report. The appeal must then be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, the Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).