Citation Nr: 1310890 Decision Date: 04/02/13 Archive Date: 04/11/13 DOCKET NO. 06-11 171 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for degenerative (discogenic) disc disease of the lumbar spine, including as secondary to service-connected lumbar strain with myositis. 2. Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU). REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD M. Young, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from July 1979 to July 1982 and from February 2003 to August 2004, and also had Reserve service. These matters are before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision that, in pertinent part, denied secondary service connection for degenerative joint disease (DJD) and discogenic disease changes L4-L5, small central disc protrusion, posterior facet joint degenerative changes; and a May 2006 rating decision that denied entitlement to a TDIU rating. In June 2009, the Board remanded for further development the issue of service connection for lumbar spine degenerative disc disease (DDD) (claimed as discogenic disease changes L4-L5, small central disc protrusion, posterior facet joint degenerative changes), and deferred (as inextricably intertwined) the matter of entitlement to a TDIU rating. These matters were before the Board in October 2011 when they were again remanded for additional development. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action on his part is required. REMAND A review of the record finds that because of a due process defect the matter of service connection for lumbar spine DDD, including as secondary to service-connected lumbar strain with myositis, is not ready for appellate review, and that a remand for issuance of an adequate supplemental statement of the case (SSOC) is necessary. The October 2011 Board remand ordered the RO to readjudicate the matter of service connection for lumbar spine DDD. While the SSOC issued in response properly characterized the issue as one of service connection for DDD, the explanation of rationale for the determination on that issue (beginning on p. 9) instead discusses the matter of the rating for DDD (as if it were already service-connected, despite there being no rating decision to that effect). This SSOC is clearly inadequate, and nonresponsive to the Board's remand instructions, and requires corrective action. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As the matter of entitlement to a TDIU rating remains inextricably intertwined with the matter of service connection for lumbar spine DDD, appellate consideration of the TDIU matter must continue to be deferred pending resolution of the service connection issue (and if service connection for the DDD is granted, the Veteran's service-connected low back disability would have to be re-rated to encompass disc pathology). Accordingly, the case is REMANDED for the following: 1. The RO should re-adjudicate the matter of service connection for lumbar spine DDD, to include as secondary to service-connected lumbar strain with myositis. If service connection for lumbar spine is granted, the RO should issue a rating decision that implements such determination and (following any further development deemed necessary) re-rates the Veteran's service-connected low back disability to encompass the disc pathology. If service connection for lumbar spine DDD remains denied, the Veteran should be so advised (with explanation of rationale), and afforded the opportunity to respond. 2. The RO should arrange for any further development indicated regarding the claim for a TDIU rating (particularly any suggested by the determination on the matter of service connection for lumbar spine DDD), and readjudicate that matter. If either benefit sought remains denied, the RO should issue an appropriate SSOC (i.e., one that includes explanation of rationale for the determinations made on the issues on appeal), and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matters 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ GEORGE R. SENYK 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 United States Court of Appeals for Veterans Claims. 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).