Citation Nr: 20003567 Decision Date: 01/15/20 Archive Date: 01/15/20 DOCKET NO. 11-24 709 DATE: January 15, 2020 REMANDED Entitlement to a rating in excess of 40 percent, prior to April 24, 2012, and from August 1, 2012, for incomplete subluxation cervical spine with degenerative disc and facet disease with intermittent left radiculopathy is remanded. Entitlement to a total disability rating due to individual unemployability due to service-connected disability (TDIU) prior to July 17, 2019 is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1964 to January 1967. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a January 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in April 2015 and December 2017 when it was remanded for further development. Regarding the matter of entitlement to TDIU, a December 2019 rating decision awarded entitlement to TDIU effective July 17, 2019, the date the Veteran’s formal claim for TDIU was received by VA. The Veteran’s claim for TDIU indicated that he was unemployable due in part to his cervical spine disability and indicated that he last worked in 2009. Evidence of record during the appeal period for the increased rating claim currently before the Board indicates that the Veteran stopped working after having a laminectomy in 2012 for his cervical spine condition and was having trouble performing the duties of his job prior to that time due in part to his neck disability. Therefore, the Board finds that the claim seeking entitlement to TDIU was raised by the record in the increased rating appeal before the Board prior to the current July 17, 2019 effective date of the award of TDIU. Rice v. Shinseki, 22 Vet. App. 447 (2009); see Harper v. Wilkie, 30 Vet. App. 356 (2018). Therefore, the issue is included as part of the issues on appeal. Entitlement to an increased rating for incomplete subluxation cervical spine with degenerative disc and facet disease with intermittent left radiculopathy is remanded. The Board regrets the additional delay but finds that an additional remand is necessary as there has not been substantial compliance with the mandates of the December 2017 remand order. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that where the remand orders of the Board are not substantially complied with, the Board errs as a matter of law when it fails to ensure substantial compliance). In December 2017, the Board remanded the Veteran’s claim to the Agency of Original Jurisdiction (AOJ) for further development. The Board requested the AOJ provide the Veteran with a VA examination to determine the current nature and severity of his service-connected subluxation cervical spine with degenerative disc disease and facet disease with intermittent left radiculopathy and asked the examiner to address a November 2011 letter from a VA physician and its indications that the Veteran suffers from intervertebral disc disorder/syndrome of the cervical and lumbar spine. Unfortunately, the Board finds that there was not substantial compliance with the remand directives. The record shows that the Veteran was provided another VA examination in January 2018 to determine the current nature and severity of his service-connected subluxation cervical spine with degenerative disc disease and facet disease with intermittent left radiculopathy. However, the examination report indicates that the examiner was unable to address the November 2011 letter because he or she was unable to find the letter in VBMS. The Board has reviewed the Veteran’s file and was able to locate the letter. Therefore, the Board finds there has not been substantial compliance with the December 2017 Board remand as it was not considered. As such, an additional remand to ensure substantial compliance is necessary. Entitlement to TDIU is remanded. As noted above, the Board has found that the matter of entitlement to TDIU prior to July 17, 2019 is part and parcel of the increased rating claim currently before the Board. As the claim for TDIU is inextricably intertwined with the increased rating claim being remanded, it must also be remanded. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from December 2019 to the present. 2. Arrange for the record to be returned to the VA examiner who conducted the January 2018 VA examination. If the examiner is unavailable, arrange for the record to be forwarded to another appropriate clinician for review and to provide the opinion sought. If further examination of the Veteran is deemed necessary, arrange an in-person examination. The reviewing clinician should be requested to address the November 2011 letter, listed as ‘Third Party Correspondence’ in VBMS, and its indications that the Veteran suffers from intervertebral disc disorder/syndrome of the cervical and lumbar spine.   3. Then, the record should again be reviewed. If any benefit sought on appeal remains denied, including entitlement to TDIU prior to July 17, 2019, the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Jiggetts The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.