Citation Nr: 1801086 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 13-25 431A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an evaluation in excess of 40 percent for degenerative disc disease (DDD) of the lumbosacral spine. 2. Entitlement to an evaluation for gastroesophageal reflux disease (GERD), at a compensable level prior to October 20, 2010, and in excess of 10 percent thereafter. 3. Entitlement to a compensable evaluation for bilateral hearing loss. 4. Entitlement to an evaluation in excess of 50 percent for adjustment disorder with mixed anxiety and depressed mood associated with DDD of the lumbosacral spine. 5. Entitlement to a total disability rating based upon individual unemployability (TDIU) prior to December 27, 2013. REPRESENTATION Veteran represented by: Christopher Loiacono, Agent ATTORNEY FOR THE BOARD H. Daus, Associate Counsel INTRODUCTION The Veteran had qualifying service from October 1988 to October 2008. These matters come before the Board of Veterans' Appeals (Board) on appeal from May 2011 and August 2014 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran was scheduled for a Board hearing in November 2017; however, he failed to appear. No good cause for failure to appear have been submitted; as such, the hearing request is deemed withdrawn. A June 2017 rating decision reinstated the Veteran's total disability rating based upon unemployability (TDIU). However, the Veteran filed for a TDIU in conjunction with his August 2010 increased rating claim, and the effective date for the grant of a TDIU is December 27, 2013. He has not been granted the maximum benefit allowed; thus, the issue of entitlement to a TDIU prior to December 27, 2013, is still on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran generally contends that the symptoms related to his service-connected disabilities are more severe than contemplated by their current evaluations. Moreover, he has expressed that his service-connected lumbar spine disability has worsened since his last VA examination. The record is currently insufficient to decide the claims. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Correia v. McDonald, 28 Vet. App. 158 (2016). The Board finds that the outcome of increased rating claims that are being remanded could have a significant impact on the TDIU claim. As such, the TDIU issue is inextricably intertwined with the issues being remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Therefore, the Board finds that the increased rating claims must be adjudicated by the AOJ prior to appellate consideration of entitlement to a TDIU prior to December 27, 2013. Accordingly, the case is REMANDED for the following action: 1. Seek any relevant records from the Social Security Administration (SSA). See February 2015 consent form for U.S. Congressman Fincher (the Veteran wrote that he applied for SSA disability benefits in 2013 and that SSA has all his medical records pertaining to the physical and mental disabilities that preclude him from working). As the SSA records are in the constructive possession of the federal government and may be relevant to all of the service-connected disabilities currently on appeal, VA is required to seek them and, if possible, associate them with the claims file. 2. Schedule an examination to assess the current severity of the lumbar DDD. See October 2010 VA examination (not compliant with the holding of Correia); September 2013 representative letter (disability worsened since the October 2010 examination). 3. After completing directive 1 and if any new evidence indicates that the GERD, bilateral hearing loss, and/or adjustment disorder have worsened since their last examinations, schedule examinations to assess the current severity of these disabilities. 4. After completion of the above, the AOJ should review the expanded record and determine if the appeal can be granted-including the TDIU claim prior to December 27, 2013. If the claims remain denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case. After an opportunity to respond, the case should be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the remanded matters. See Kutscherousky v. West, 12 Vet. App. 369 (1999). All remanded claims must be handled expeditiously. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ H.M. WALKER Veterans Law Judge, Board of Veterans' Appeals Only a Board decision is appealable to the United States Court of Appeals for Veterans Claims. See 38 U.S.C. § 7252 (2012). This remand is in the nature of a preliminary order and does not constitute a Board decision on the merits of your appeals. See 38 C.F.R. § 20.1100(b) (2017).