Citation Nr: 1802484 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 11-27 536 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an effective date earlier than March 13, 2009, for an award of a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Karl A. Kazmierczak, Attorney WITNESSES AT HEARING ON APPEAL The Veteran and Spouse ATTORNEY FOR THE BOARD Leanne M. Innet, Associate Attorney INTRODUCTION The Veteran served on active duty from April 1979 to November 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office in Columbia, South Carolina (RO). In April 2014, the Board remanded the issues of entitlement to an effective date earlier than March 13, 2009, for the grant of service connection for degenerative disc disease (DDD) of the cervical spine with fusion and retained hardware from C3-4, C4-7, and C7-T2; and entitlement to an effective date earlier than March 13, 2009, for entitlement to a total disability rating due to individual unemployability. In an August 2016 Board decision and remand, the Board denied entitlement to an earlier effective date for service connection for DDD of the cervical spine and remanded for further development the issue of entitlement to an earlier effective date for TDIU. The case has been returned for appellate consideration, and as discussed below, the Board finds that there has not been substantial compliance with its August 2016 remand. As such, the Board may not proceed with a determination on the merits of this issue at this time. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In January 2015, the Veteran testified before a decision review officer, and in September 2017, the Veteran and his wife testified at a Travel Board hearing before the undersigned. Transcripts are of record. This appeal was processed using the Virtual VA (VVA) and Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future review of this Veteran's case should take into consideration the existence of these electronic records. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Inasmuch as the Board regrets the additional delay of this appeal, a remand is required so that the claim may be properly adjudicated. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). In the August 2016 remand, the Board remanded this issue, in part, to obtain medical opinions based upon a record review of whether the Veteran was precluded from securing or following a substantially gainful occupation due to his service-connected disabilities, including degenerative disc disease of the lumbar spine evaluated as 10 percent disabling effective December 1, 1994, during any period prior to March 13, 2009. Such an opinion pertaining to the Veteran's service-connected lumbar spine disability was not obtained. To properly adjudicate this claim, this opinion must be obtained and the rationale must address the Social Security Administration (SSA) Disability Determination and Transmittal and associated SSA medical records showing that the Veteran was found disabled as of January 1995 due to a primary diagnosis of "Disorders of back." It must also address the Veteran's lay statements concerning his inability to work due to his back disability. The Board also notes that the claim was not re adjudicated in a Supplemental Statement of the Case as instructed in the remand. A remand by the Board confers on the Veteran, as a matter of law, the right to have compliance with the remand directives, and the Board has a duty to ensure such compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). In light of the foregoing incomplete development in this claim, again, the Board must remand this matter for the above noted medical opinion, possible referral to VA's Director of Compensation Service for consideration of entitlement to an extraschedular TDIU prior to March 13, 2009, under the provisions of 38 C.F.R. § 3.416(b) (2017), and readjudication of the issue on appeal. Accordingly, the case is REMANDED for the following actions: 1. Refer the Veteran's claims file and a copy of this remand to a VA examiner for a record review and determination of whether the Veteran was precluded from working due to service-connected degenerative disc disease of the lumbar spine, rated 10 percent during any period prior to March 13, 2009. The Veteran's education and experience (aircraft maintenance) together with the medical evidence, particularly that used to support the Social Security Administration's determination of disability, should be considered. A complete rationale for all opinions must be included. Based upon a full review of the record, to include the Veteran's lay statements regarding incurrence and symptomatology of his disability, the examiner must specifically state whether the Veteran's service-connected degenerative disc disease of the lumbar spine precluded the Veteran from securing or following a substantially gainful occupation during any period prior to March 13, 2009. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner must provide a fully reasoned explanation. All opinions must be supported by a clear rationale, and a discussion of the facts and medical principles involved. In rendering the opinion, the examiner should not resort to mere speculation. If it is not possible to provide the requested opinion without resort to speculation, the examiner should state why speculation would be required in this case. If there are insufficient facts or data within the claims file, the examiner should identify the relevant testing, specialist's opinion, or other information needed to provide the requested opinion. 2. If it is determined that service-connected disabilities precluded the Veteran from securing or following a substantially gainful occupation prior to March 13, 2009, refer the Veteran's claim to VA's Director of Compensation Service for consideration of entitlement to an extraschedular TDIU prior to March 13, 2009, under the provisions of 38 C.F.R. § 4.16(b) (2017). 3. After completing the above actions and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the Veteran's claim should be readjudicated. If the claim remains denied, the Veteran and his attorney must be provided a supplemental statement of the case. After the Veteran and his attorney have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter 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. §§ 5109B, 7112 (2012). _________________________________________________ LANA K. JENG Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).