Citation Nr: 1710683 Decision Date: 04/04/17 Archive Date: 04/11/17 DOCKET NO. 09-22 948A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for a cervical spine disability with degenerative arthritis. 2. Entitlement to a total disability rating due to individual unemployability (TDIU). ATTORNEY FOR THE BOARD B. P. Keeley, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from August 1983 to August 2007. This matter comes before the board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. The claims were subsequently transferred to the RO in Wichita, Kansas. That rating decision granted service connection for a left knee disability with degenerative arthritis, with an initial rating of 10 percent, and granted service connection for a cervical spine disability with degenerative arthritis and left upper arm radiculopathy, with an initial rating of 10 percent. This matter was previously before the Board in May 2011, at which time it was remanded for further development. This matter was again before the Board in May 2014, at which time the Board denied the claim for the left knee disability and remanded the claim for an increased rating for a cervical spine disability and a claim for TDIU. This is a paperless appeal located on the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing system. The Board has reviewed the electronic records maintained in both VBMS and Virtual VA to ensure consideration of the totality of the evidence. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board remanded this matter in May 2014 with instructions to assist the Veteran in obtaining outstanding private treatment records and to schedule the Veteran for a new VA orthopedic examination. The Board notes that the Veteran was scheduled for a VA examination on September 23, 2016. The Veteran called VA and informed VA that he was out of the country and that he would not be back until December 2016, or February or March 2017, and requested that his hearing be rescheduled for when he came back to the United States. A remand is required in this case to ensure that there is a complete record upon which to decide the Veteran's claims of entitlement to an increased rating for his cervical spine disability. See 38 C.F.R. § 19.9 (2016). VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A (a) (West 2014); 38 C.F.R. § 3.159 (c), (d) (2016). Additionally, the outcome of the claim for a TDIU could be affected by the results of development ordered on remand. Thus the TDIU claim is inextricably intertwined with the claims being developed. See, Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered). Therefore, remand is also warranted with regard to the issue of entitlement to TDIU. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA treatment records, as well as private records, pertaining to the Veteran's cervical spine disability, to include chiropractic treatment records. All obtained treatment records should be associated with the record. 2. After the above development has been completed and all records obtained have been associated with the record, schedule the Veteran for the appropriate VA, to include any necessary testing, to determine the nature and severity of the Veteran's cervical spine disability. The record must be made available to and reviewed by the examiner. A complete rationale for all opinions expressed must be provided. The examiner should comment on the effect the functional and occupational impairment caused by the disability. 3. After the above development has been completed, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a Supplemental Statement of the Case, and return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or 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). _________________________________________________ K. J. ALIBRANDO 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) (2016).