Citation Nr: 1324112 Decision Date: 07/29/13 Archive Date: 08/07/13 DOCKET NO. 04-13 608 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an initial disability rating in excess of 20 percent for degenerative disc disease of the thoracolumbar spine. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Sara Schinnerer, Counsel INTRODUCTION The Veteran served on active duty from April 1963 to March 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal of an August 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge in September 2005; a transcript of the hearing is associated with the record. When this case was most recently before the Board in April 2013, it was remanded for additional development. The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. REMAND In the April 2013 remand, the Board, in pertinent part, directed the RO or the Appeals Management Center (AMC) to ask the Veteran to clarify whether he was seeking entitlement to a TDIU due to all of his service-connected disabilities, versus his service-connected thoracolumbar spine currently on appeal and the service-connected left knee disability that had been on appeal. Significantly, the Board directed the originating agency to undertake specific development and to adjudicate the claim for a TDIU based on all of the service-connected disabilities if the Veteran asserted that he was claiming unemployability due to all of his service-connected disabilities. In response to an April 2013 letter requesting such clarification, the Veteran, in a letter dated later that same month, indicated that he was seeking entitlement to a TDIU based upon all of his service-connected disabilities. Although the Veteran's response was received by VA in April 2013, some of the required development directed by the Board was not completed or even attempted. Moreover, the AMC did not adjudicate the claim for a TDIU based on all of the service-connected disabilities. As there has not been substantial compliance with the remand directives, the appeal must be remanded again. See Stegall v. West, 11 Vet. App. 268 (1998). Finally, the claim of entitlement to an initial disability rating in excess of 20 percent for degenerative disc disease of the thoracolumbar spine is "inextricably intertwined" with the issue of entitlement to a TDIU due to the service-connected disabilities. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). Accordingly, this case is REMANDED to the RO or the AMC, in Washington, D.C., for the following actions: 1. The RO or the AMC should provide the Veteran with all required notice in response to his claim of entitlement to a TDIU due to all of his service-connected disabilities. 2. The RO or the AMC should undertake appropriate development to obtain any outstanding, pertinent evidence, to include the Veteran's outpatient treatment records from the VA Medical Center in Columbus, Ohio and from the VA Medical Center is in Chillicothe, Ohio for the period since February 2012. If any requested records are unavailable, or the search for such records otherwise yields negative results, that fact should clearly be documented in the claims file, and the Veteran so notified. 3. The RO or the AMC should also undertake any other development it determines to be warranted. 4. Then, the RO or the AMC should readjudicate the issue of entitlement to an initial disability rating in excess of 20 percent for degenerative disc disease of the thoracolumbar spine. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the RO or the AMC should issue to the Veteran and his representative a supplemental statement of the case and afford them the requisite opportunity to respond.. 5. The RO or the AMC also should adjudicate the issue of entitlement to a TDIU based on all of the service-connected disabilities and inform the Veteran of his appellate rights with respect to this decision. All issues properly in appellate status should be returned to the Board at the same time. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court 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). _________________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals 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).