Citation Nr: 1309261 Decision Date: 03/19/13 Archive Date: 04/01/13 DOCKET NO. 07-09 166 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for lumbar spine degenerative disc disease. 2. Entitlement to an increased disability evaluation for the Veteran's L3 transverse process fracture residuals, currently 20 percent disabling. 3. Entitlement to a total rating for compensation purposes based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Charles D. Romo, Attorney ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The Veteran had active service from July 1976 to July 1981. This matter came before the Board of Veterans' Appeals (Board) on appeal of an October 2006 rating decision of the St. Petersburg, Florida, Regional Office (RO) which denied an increased disability evaluation for the Veteran's L3 transverse process fracture residuals. In September 2009, the Board remanded the Veteran's claim to the RO for additional action. In June 2010, the Board remanded the Veteran's appeal to the RO for additional action which included adjudication of the inextricably intertwined issue of Veteran's entitlement to service connection for lumbar spine degenerative disc disease. In September 2011, the RO denied service connection for lumbar spine degenerative disc disease. In December 2011, the Veteran submitted a notice of disagreement (NOD) with that rating decision. The Board has reviewed both the Veteran's physical claims files and his "Virtual VA" file so as to insure a total review of the evidence. This appeal is REMANDED to the RO. The Department of Veterans Affairs (VA) will notify the Veteran if further action is required on his part. In December 2011, the Veteran submitted claims of entitlement to service connection for bilateral radiculopathy, right ear hearing loss, and depression. The issues have not been adjudicated by the RO. Therefore, the Board does not have jurisdiction over them. The issues are referred to the RO for appropriate action. REMAND Unfortunately, another remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. The Veteran has submitted a timely NOD with the denial of service connection for lumbar spine degenerative disc disease. The United States Court of Appeals for Veterans Claims (Court) has directed that where a veteran has submitted a timely NOD with an adverse decision and the RO has not subsequently issued a statement of the case (SOC) addressing the issue, the Board should remand the issue to the RO for issuance of a SOC. Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). As noted in the Board's prior Remand, the issue of service connection for lumbar spine degenerative disc disease is inextricably intertwined with the issue of an increased evaluation for the Veteran's L3 transverse process fracture residuals. In its June 2010 Remand, the Board conveyed that: The United States Court of Appeals for Veterans Claims (Court) has directed that when entitlement to a total rating for compensation purposes based on individual unemployability is raised during the adjudicatory process of evaluating the underlying disability, it is part of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447, 454(2009). The Board then directed that: 4. Then readjudicate the issue of an increased evaluation for the Veteran's L3 transverse process fracture residuals with express consideration of the Court's holding in Rice v. Shinseki, 22 Vet. App. 447 (2009). If the benefits sought on appeal remain denied, the Veteran and his accredited representative should be issued a supplemental statement of the case (SSOC) which addresses all relevant actions taken on the Veteran's claim for benefits, to include a summary of the evidence and applicable law and regulations considered, since the issuance of the last SSOC. The Veteran should be given the opportunity to respond to the SSOC. The Veteran's entitlement to a TDIU has not been adjudicated. The Court has held that the RO's compliance with the Board's remand instructions is neither optional nor discretionary. Stegall v. West, 11 Vet. App. 268 (1998). Clinical documentation dated after October 2011 is not of record. VA should obtain all relevant VA and private clinical documentation which could potentially be helpful in resolving the Veteran's claims. Murphy v. Derwinski, 1 Vet. App. 78, 81-82 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he provide information as to all treatment of his L3 transverse process fracture residuals after October 2011, such as the names and addresses of all health care providers whose records have not already been provided to VA. Upon receipt of the requested information and the appropriate releases, the RO should contact all identified health care providers and request that they forward copies of all available clinical documentation pertaining to treatment of the Veteran, not already of record, for incorporation into the record. If identified records are not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e) (2012). 2. Associate with the record all VA clinical documentation pertaining to the treatment of the Veteran not already of record, including that provided after October 2011. 3. Then issue a SOC to the Veteran and his attorney which addresses the Veteran's entitlement to service connection for lumbar spine degenerative disc disease. The Veteran should be given the appropriate opportunity to respond to the SOC. 4. Thereafter, ensure that the development above has been completed in accordance with the remand instructions, undertake any other development action that is deemed warranted, and readjudicate the Veteran's claims including his entitlement to a TDIU. If the benefits sought on appeal remain denied, the Veteran and his attorney should be provided a SSOC. An appropriate period of time should be allowed for response before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development (CONTINUED ON NEXT PAGE) or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ J. T. HUTCHESON Acting 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).