Citation Nr: 1804310 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 11-11 939 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an effective date earlier than April 16, 2010, for the award of a 20 percent disability rating for intervertebral disc syndrome (IVDS), status post laminectomy with scar. 2. Entitlement to an effective date earlier than November 15, 2006, for the award of a separate rating for loss of sensation of the left lower extremity, associated with service-connected IVDS. 3. Entitlement to an effective date earlier than November 15, 2006, for the award of a separate rating for loss of sensation of the right lower extremity, associated with service-connected IVDS. 4. Entitlement to a rating in excess of 20 percent for IVDS. 5. Entitlement to an initial rating in excess of 10 percent for loss of sensation of the right lower extremity prior to May 26, 2010, a rating in excess of 20 percent from May 26, 2010, to August 16, 2017, and a rating in excess of 40 percent thereafter. REPRESENTATION Appellant represented by: Jodee C. Kayton, Attorney ATTORNEY FOR THE BOARD R. Behlen, Associate Counsel INTRODUCTION The appellant served on active duty in the Navy from December 1986 to May 1988. This matter comes before the Board of Veterans' Appeals (Board) from a June 2010 rating decision that granted a 20 percent rating for L5 spondylosis with low back pain and scar, effective April 16, 2010, and a March 2011 rating decision which granted service connection for loss of sensation of left lower extremity and assigned an initial 20 percent rating, effective December 22, 2008, and further granted loss of sensation of right lower extremity, with an initial 10 percent rating, effective December 22, 2008, and a rating of 20 percent, effective May 26, 2010, from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This matter was remanded by the Board in November 2015 in order to defer adjudication of the issues listed on the first page pending adjudication of the question of whether there was clear and unmistakable error (CUE) in a June 2003 rating decision, which denied an increased rating for mechanical low back pain with L5 spondylolysis, now characterized as IVDS, as all the issues in the instant appeal are inextricably intertwined with such question. In a June 2017 rating decision, it was determined that there was no clear and unmistakable error in the June 2003 rating decision. Although the appeal period following notice of such rating decision had not elapsed, a Supplemental Statement of the Case (SSOC) regarding the instant appeal was issued in September 2017, as well as a rating decision which granted entitlement to (1) a total rating based on individual unemployability (TDIU), effective July 11, 2011; (2) a rating of 40 percent for loss of sensation of the left lower extremity, effective August 16, 2017; (3) a rating of 40 percent for loss of sensation of the right lower extremity, effective August 16, 2017; and (4) basic eligibility to Dependents' Educational Assistance, effective July 11, 2011. A timely Notice of Disagreement (NOD) was received in October 2017, with respect to CUE issue addressed in the June 2017 rating decision. Generally, the filing of a NOD confers jurisdiction on the Board and the next step is for the Agency of Original Jurisdiction (AOJ) to issue an SOC. See Manlincon v. West, 12 Vet. App. 238 (1999). However, because the Board's review of the record reveals that the RO is still taking action on the CUE issue, the Board will not exercise formal jurisdiction over it at this time. The Board observes that the appellant is in receipt of a temporary 100 percent rating for his IVDS under 38 C.F.R. § 4.30 from September 20, 2012, through December 31, 2012. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND As noted above, this matter was previously remanded by the Board such that adjudication would be deferred until after the CUE question was adjudicated, because a successful CUE claim could result in an earlier effective date and/or an increased rating for the appellant's IVDS, previously characterized as mechanical low back pain with L5 spondylolysis, which could also affect the associated bilateral lower extremity disability ratings and effective dates. As the CUE question is still being adjudicated, adjudication of the instant appeal by the Board would be premature, which is why these issues were remanded in November 2015. See Stegall v. West, 11 Vet. App. 268 (1998) (Compliance with remand directives by the originating agency is not optional or discretionary. The Board errs as a matter of law when it fails to ensure remand compliance.). In other words, this matter is still not ripe for appellate consideration as it is inextricably intertwined with the CUE appeal. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any appellate review meaningless and a waste of judicial resources, the two claims are inextricably intertwined). Accordingly, the case is REMANDED for the following action: 1. The RO should contact the appellant and advise him that his appeal with respect to the issues of entitlement to (1) an effective date earlier than April 16, 2010, for the award of a 20 percent disability rating for IVDS status post laminectomy with scar; (2) an effective date earlier than November 15, 2006, for the award of a separate rating for loss of sensation of the left lower extremity associated with service-connected IVDS; (3) an effective date earlier than November 15, 2006, for the award of a separate rating for loss of sensation of the right lower extremity, associated with service-connected IVDS; (4) a rating in excess of 20 percent for IVDS; and (5) an initial rating in excess of 10 percent for loss of sensation of the right lower extremity prior to May 26, 2010, a rating in excess of 20 percent from May 26, 2010, to August 16, 2017, and a rating in excess of 40 percent thereafter; will be held in abeyance until: (a) the appeal period following notification of the forthcoming Statement of the Case regarding the CUE issue, denied in a June 2017 rating decision, has elapsed; (2) the appellant perfects an appeal of the CUE issue following issuance of a Statement of the Case and the appeal is fully adjudicated; or (3) the appellant indicates that he wishes to withdraw the CUE issue. 2. The RO should take appropriate action based on the appellant's response. If he does not respond following the issuance of a Statement of the Case regarding the CUE issue, the issue should be held in abeyance until the expiration of the applicable period. Thereafter, the RO should review any additional evidence or argument received and issue a Supplemental Statement of the Case, if necessary. The case should then be returned to the Board in accordance with established procedures. 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). (CONTINUED ON NEXT PAGE) 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). ______________________________________________ ERIC S. LEBOFF 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).