Citation Nr: 1527251 Decision Date: 06/25/15 Archive Date: 07/07/15 DOCKET NO. 96-40 537 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an evaluation in excess of 20 percent disabling for osteoarthritis of the cervical spine for the period beginning September 30, 2011, to include consideration of whether a separate rating for neurological abnormalities is warranted. 2. Entitlement to an initial evaluation in excess of 50 percent disabling for depressive disorder with history of dysthymic disorder. 3. Entitlement to an effective date prior to June 29, 1995, for the grant of service connection for depressive disorder with history of dysthymic disorder. 4. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Sandra E. Booth, Attorney ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran had active military service from February 1962 to April 1965. He also had reserve service from 1977 to 1983 with periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA). This matter comes before the Board of Veterans' Appeals (Board) on appeal from multiple rating decisions of Department of Veterans Affairs (VA) Regional Office (R0s). In an April 2013 decision, the Board, in relevant part, denied a disability rating in excess of 10 percent for the cervical spine prior to September 2011, and in excess of 20 percent thereafter, and determined that the record did not raise a claim for TDIU. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a December 2014 decision, the Court affirmed that portion of the Board's April 2013 decision denying an increased disability rating for a cervical spine condition prior to September 2011, and set aside those portions of the April 2013 Board decision denying disability benefits for intervertebral disc syndrome (IVDS) and TDIU. The Veteran has also submitted a notice of disagreement as to a March 2014 rating decision that granted service connection and assigned an initial rating of the psychiatric disability. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Review of the claims file reveals that the Veteran receives consistent treatment from VA; however, records regarding the Veteran's treatment dated since March 2014 have not been obtained and associated with the claims file. On remand, obtain and associate with the claims file VA treatment records regarding the Veteran dated since March 2014. 38 C.F.R. § 3.159 (2014). In a March 2014 rating decision the RO granted service connection for depressive disorder with history of dysthymic disorder and assigned an initial evaluation of 50 percent disabling, effective June 29, 1995. The Veteran was notified of the decision, including the initial evaluation and effective date, in a letter dated in April 2014. The Veteran, via his representative, filed a Notice of Disagreement with the initial evaluation and the effective date in April 2015. Thus, the issues of entitlement to an initial evaluation in excess of 50 percent and entitlement to an effective date prior to June 29, 1995, for the grant of service connection are remanded to the RO for the issuance of a statement of the case. See Manlincon v. West, 12 Vet. App. 238 (1999). In the December 2014 Decision, the Court found that a medical examination was required to determine whether the Veteran suffers from IVDS and thus, should be assigned a separate rating for neurological abnormalities. The Court also noted that the record revealed evidence of unemployability. As such, the Board has listed the issue of entitlement to a TDIU above. The Veteran reported that he was unable to work since 1993 and that he retired in 1995. The Veteran was noted to have contended that physicians would not let him go back to work due to back problems since 1993. A VA medical examination in September 2011 indicates that the Veteran reported quitting his job in 1993 and being retired in 1995. The examination report indicates that the Veteran's low back disability would interfere with lifting, carrying, stooping, prolonged standing, and prolonged walking. The Veteran meets the schedular criteria for assignment of a TDIU beginning June 29, 1995; however, as the remand of the effective date of the award of service connection for depressive disorder with history of dysthymic disorder may impact the outcome of the claim of entitlement to a TDIU, the issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Thus, the Board will not adjudicate the issue of entitlement to a TDIU until the issue of entitlement to an effective date prior to June 29, 1995, for depressive disorder with history of dysthymic disorder is adjudicated. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file VA treatment records regarding the Veteran dated since March 2014. Any additional pertinent records identified by the appellant during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the appellant, and associated with the claims file. 2. Provide the Veteran and his representative a statement of the case on the issues of entitlement to an initial evaluation in excess of 50 percent disabling for depressive disorder with history of dysthymic disorder and entitlement to an effective date prior to June 29, 1995, for the grant of service connection for depressive disorder with history of dysthymic disorder. If, and only if, the Veteran perfects his appeal by submitting a timely and adequate substantive appeal, return the claim to the Board for the purpose of appellate disposition. 3. Thereafter, schedule the Veteran for an appropriate VA examination to determine the nature, extent and severity of his service-connected osteoarthritis of the cervical spine disorder. The claims folder and copies of all pertinent records should be made available to the examiner. The examiner is requested to delineate all symptomatology associated with, and the current severity of, the osteoarthritis of the cervical spine. The appropriate Disability Benefits Questionnaire (DBQs) should be filled out for this purpose, if possible. The examiner must comment on whether the Veteran's osteoarthritis of the cervical spine manifests IVDS. 4. Thereafter, readjudicate the claims on appeal, to include TDIU, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decisions remain adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond. 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). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).