Citation Nr: 1802660 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 13-36 110 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to an initial compensable disability rating for lumbar strain. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to a service-connected back disability. 3. Entitlement to an effective date for the grant of service connection for lumbar strain, prior to July 28, 2010. (The issue of entitlement to service connection for lumbar disc disease is adjudicated in a separate decision by the Board of Veterans' Appeals (Board)). REPRESENTATION Veteran represented by: Joseph A. Whitcomb, Attorney at Law WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Harrigan Smith, Counsel INTRODUCTION The Veteran served on active duty from December 1973 to November 1974 This matter is before the Board on appeal of an October 2012 rating decision of the Denver, Colorado, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veterans Law Judge in September 2014. In its July 2015 remand, the Board referred a claim for entitlement to service connection for a psychiatric disorder secondary to service-connected lumbar strain to the RO for appropriate action. In an April 2017 rating decision, the RO denied the claim. The Veteran perfected an appeal to this denial with a VA Form 9 filed in July 2017. However, this issue has not yet been certified to the Board for appellate review. Certification is used for administrative purposes and does not serve to either confer or deprive the Board of jurisdiction over an issue. 38 C.F.R. § 19.35 (2017). However, certification ensures that certain due process rights are satisfied. Specifically, when an appeal is certified and the record transferred to the Board, the appellant and his or her representative, if any, will be notified in writing of the certification and transfer and of the time limit for requesting a change in representation, for requesting a personal hearing, and for submitting additional evidence. See 38 C.F.R. §§ 19.36, 20.1304(a) (2017). Accordingly, the Board will defer action on this issue to ensure all due process requirements are satisfied. See 38 C.F.R. § 3.103 (2017) (setting forth due process and appellate rights); Gray v. McDonald, 27 Vet. App. 313, 327 (2016) (due process protections apply to disability compensation proceedings before the Board) (citing Cushman v. Shinseki, 576 F.3d 1290 (Fed.Cir.2009)); see also Carter v. McDonald, 794 F.3d 1342, 1346 (Fed. Cir. 2015). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Board remanded the issues noted on the title page of this decision in July 2015 for additional development and subsequent issuance of a supplemental statement of the case. However, the AOJ did not issue a supplemental statement of the case addressing an October 2017 VA spine examination. Therefore, the Board finds that a remand is required for the AOJ to issue a supplemental statement of the case. See 38 C.F.R. §§ 19.31 and 19.38 (requiring issuance of SSOC following Board remand unless Board specifies otherwise or purpose of remand is to assemble records previously considered and discussed in prior SSOC); 20.1304 (2017). With respect to the issue of entitlement to an earlier effective date for the grant of service connection for a lumbar strain disability, in view of the pending July 2010 service connection claim for lumbar disc disease coupled with the May 2015 opinion in the electronic record from the Veteran's private doctor to the effect that the Veteran's lumbar disc disease is related to service, and that it is impossible to distinguish between manifestations of lumbar strain and disc disease, the Board finds this issue is inextricably intertwined with the issues being remanded and a determination must be deferred. This is also true for the claim of entitlement to a TDIU as eligibility for such is dependent upon a determination of the occupational functioning impact of all of the Veteran's service-connected disabilities. As such, a determination with respect to entitlement to a TDIU, at this point, would be premature. Accordingly, the case is REMANDED for the following action: After the Veteran's claim for entitlement to service connection for degenerative disc disease of the lumbar spine has been adjudicated, readjudicate the issues on appeal in this decision. If any benefit on appeal remains denied, issue a supplemental statement of the case. Thereafter, the case should be returned to the Board, if in order. The Veteran 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. §§ 5109B, 7112 (West 2014). _________________________________________________ M. HYLAND Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 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) (2017).