Citation Nr: 18158699 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 07-32 035 DATE: December 18, 2018 REMANDED Whether the Veteran filed a timely notice of disagreement (NOD) to the December 2000 rating decision that reduced the rating for his back disorder from 60 percent disabling to 20 percent is remanded. Entitlement to an effective date prior to May 8, 2012, for the grant of a 30 percent rating for bilateral hearing loss is remanded. Entitlement to an effective date prior to November 26, 2014, for the grant of a 50 percent rating for a depressive disorder is remanded. Entitlement to a rating in excess of 30 percent for bilateral hearing loss before November 26, 2014, is remanded. Entitlement to a rating in excess of 40 percent for bilateral hearing loss from November 26, 2014, is remanded. Entitlement to a rating in excess of 50 percent for a depressive disorder is remanded. Entitlement to a total rating based on individual unemployability (TDIU) prior to October 29, 2010, is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Army from October 1954 to October 1957. In October 2010, the Veteran testified at a personal hearing before the undersigned and a transcript of that hearing has been associated with the record. In an August 2016 decision, the Board of Veterans’ Appeal (Board) granted the Veteran a TDIU effective October 29, 2010, and remanded the issue of entitlement to an earlier TDIU. In the August 2016 decision, the Board also again denied the Veteran’s claim for a separate compensable rating for urinary hesitancy, which issue had earlier been the subject of a November 2014 memorandum decision by the United States Court of Appeals for Veterans Claims (Court). No further action was taken by the Veteran or his representative as to this final Board decision. Therefore, the Board finds that it need not further discuss this issue. All the Issues on Appeal are Remanded. Initially, the Board finds that that even though the Veteran’s claim for a TDIU has been pending for nearly a decade and the fact that the claimant is over 80 years old, it must further delay the final adjudication of his appeal because of the additional assertions being made for the first time in an April 2018 pleading to the Board. See Smith (Daniel) v. Gober, 236 F.3d 1370, 1373 (Fed. Cir. 2001) (noting that where the facts underlying separate claims are “intimately connected,” the interests of judicial economy and avoidance of piecemeal litigation require that the claims be adjudicated together). It would have been of great assistance to the Board had this issue been raised earlier so that the VA may have addressed the issue at an earlier stage in the proceeding. Specifically, the post-remand record shows that in an April 2018 pleading to the Board his attorney for the first time raised the issue of whether the appellant filed a timely NOD to the December 2000 rating decision that reduced the rating for his back disorder from 60 percent disabling to 20 percent disabling. However, this issue has not been adjudicated in the first instance by the regional office (RO) much less been placed in appellate status. See 38 C.F.R. §§ 19.9, 19.29; Bernard v. Brown, 4 Vet. App. 384, 393 (1993). Therefore, the Board finds that a remand for such adjudication is required. Id. As to the claim for an earlier effective date for a TDIU, in the same April 2018 pleading the Veteran’s representative argued for the first time that the above restoration claim is inextricably intertwined with his claim for an earlier effective date for a TDIU. Specifically, the Veteran’s attorney argues, in substance that if the appellant prevails on the above claim (i.e., he timely filed an NOD to the December 2000 rating decision), it would show he had a rating claim for a back disability pending since November 1999 which rating claim would have also included his TDIU claim. See, e.g., Rice v. Shinseki, 22 Vet. App. 447 (2009). Given the above argument, and without adjudicating the merits of the Veteran’s claims regarding a restoration claim also including a TDIU claim, the Board finds that it must also remand the TDIU earlier effective date claim because it is inextricably intertwined with the above claim regarding filing a timely NOD. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). As to the claims for earlier effective dates for the higher ratings for bilateral hearing loss and a depressive disorder, the Board finds that a remand is also required given the other arguments from the Veteran’s representative found in the record. Id. As to the claims for higher ratings for bilateral hearing loss and a depressive disorder, the Board finds that a remand is required to obtain outstanding treatment records and afford the Veteran new VA examinations that considers these records as well as provide opinions as to any increased adverse symptomatology since he was last examined by VA in November 2014. See 38 U.S.C. § 5103A(b), (d); Green v. Derwinski, 1 Vet. App. 121 (1991) (holding that VA’s duty to assist includes conducting a thorough and contemporaneous examination of the veteran that takes into account the records of prior examinations and treatment); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). The Board apologies to the Veteran for the delays in this case. The appeal is REMANDED for the following actions: 1. Adjudicate the claim by the Veteran’s representative that the appellant filed a timely NOD to the December 2000 rating decision that reduced the rating for his back disorder from 60 percent disabling to 20 percent. Thereafter, only return this issue to the Board if the claim is denied and the Veteran perfects an appeal to that decision by filing a timely NOD and, after the issuance of a statement of the case, a timely substantive appeal. 2. Obtain and associate with the claims file any outstanding VA treatment records. 3. After obtaining all needed authorizations from the Veteran, associate with the claims file any outstanding private treatment records. If possible, the Veteran’s attorney should obtain these records themselves to expedite this case. 4. Schedule the Veteran for a VA examination with a suitably-qualified medical professional to address the severity of his bilateral hearing loss. The claims folder should be made available to and reviewed by the examiner. The examiner is to identify all pathology found to be present. The examination report must include a complete rationale for all opinions expressed. 5. Schedule the Veteran for a VA examination with a suitably-qualified medical professional to address the severity of his depressive disorder. The claims folder should be made available to and reviewed by the examiner. The examiner is to identify all pathology found to be present. The examination report must include a complete rationale for all opinions expressed. JOHN J. CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Neil T. Werner, Counsel