Citation Nr: 1546760	
Decision Date: 11/04/15    Archive Date: 11/10/15

DOCKET NO.  13-09 782	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New York, New York


THE ISSUE

Entitlement to a total disability evaluation based on individual unemployability due to service-connected disability (TDIU).


REPRESENTATION

Appellant represented by:	New York State Division of Veterans' Affairs


ATTORNEY FOR THE BOARD

J. Dupont, Associate Counsel


INTRODUCTION

The Veteran had active military service from December 1977 to August 1981.

This matter comes before the Board of Veterans' Appeals (Board) from a February 2011 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in New York, New York.

The matter was most recently before the Board in March 2015 when it was remanded for further development.  It has now returned to the Board for further appellate consideration.  

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.

REMAND

Entitlement to Service Connection for a Neck Disability and Sinusitis

The Board's remand order of March 2015 ordered the AOJ to adjudicate the issues of entitlement to service connection for a neck disability and sinusitis.  Notably, the Veteran has claimed a neck disability (See December 2009 VA Form 21-4138) and chronic sinusitis secondary to a deviated septum (See June 2012 VA Form 21-4138).  The AOJ has not yet adjudicated these claims.  Thus, there has not been substantial compliance with the Board's prior remand, and another remand is warranted.  Stegall v. West, 11 Vet.App. 268 (1998).  

As the issues are inextricably intertwined with the Veteran's TDIU claim, in the interest of fairness to the Veteran and efficient usage of VA resources, the Board will remand the claims of entitlement to service connection for a neck disability and sinusitis for appropriate development and adjudication.  See Tyrues v. Shinseki, 23 Vet.App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim).




Entitlement to a TDIU

As noted above, the Board remanded the issue of TDIU in its March 2015 remand order.  A September 2010 VA examination report pertaining to the Veteran's neck and back reflects the Veteran reported that pain in his neck and back led to the Veteran's inability work.  A June 2015 VA examination report pertaining to the Veteran's thoracolumbar spine reflects a similar statement by the Veteran.  Again, the Board finds the issue of entitlement to service connection for a neck disability is inextricably intertwined with the Veteran's TDIU claim.  Thus, the Veteran's TDIU claim is remanded for appropriate development and adjudication.

Accordingly, the case is REMANDED for the following action: 

1. Adjudicate the Veteran's claims for entitlement to service connection for a neck disability and sinusitis.  These issues will not be further considered by the Board, unless the Veteran perfects an appeal by submitting a timely substantive appeal after a notice of disagreement and statement of the case. 

2. Thereafter, readjudicate the Veteran's TDIU claim.  If the benefit sought is not granted, issue a supplemental statement of the case and afford the Veteran and his representative an appropriate opportunity to respond.

3. Thereafter, the case should be returned to the Board, as warranted.

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).



_________________________________________________
MILO H. HAWLEY
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) (2105).