Citation Nr: 20031571 Decision Date: 05/05/20 Archive Date: 05/05/20 DOCKET NO. 17-41 263 DATE: May 5, 2020 REMANDED Entitlement to a rating in excess of 40 percent for service-connected herniated intervertebral disc disease (IVDS) and degenerative disc disease (DDD) of the lumbar spine is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected herniated IVDS and DDD of the lumbar spine is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1987 to January 1991, October 2000, October 2001 to November 2001, November 2002 to December 2002, February 2003 to August 2003, and March 2006 to November 2006. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which decreased the assigned rating for the service-connected lumbar spine disability to 20 percent from June 24, 2014. The Veteran filed a notice of disagreement (NOD) in September 2014 and a statement of the case (SOC) was issued in June 2017. He perfected a timely appeal in July 2017. In a January 2020 decision, the Board restored the Veteran’s 40 percent disability rating for his service-connected lumbar spine disability, effective June 24, 2014, and remanded the claim of entitlement to an increased rating for readjudication. A supplemental statement of the case (SSOC) was issued in January 2020 and this matter has returned to the Board. The Board notes that the August 2018 VA examiner specifically opined that the Veteran “can not be productive for gainful employment.” Accordingly, the Board finds that the matter of entitlement to a TDIU based upon the service-connected lumbar spine disability has been raised by the evidence of record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board has therefore enumerated the issue above. 1. Entitlement to a rating in excess of 40 percent for service-connected herniated IVDS and DDD of the lumbar spine is remanded. The Board notes, in a June 2018 letter, Dr. P.M. reported that the Veteran underwent a minimally invasive laminectomy and foraminotomy of the lumbar spine on May 17, 2018. Dr. P.M. indicated that the Veteran was to be released from his care in June 2018 to return to work with no restrictions. However, the Veteran’s treatment records from Dr. P.M. are not of record. Similarly, the Veteran’s May 2018 surgical records from St. Louis University Hospital are also not contained in the claims file. See the VA treatment record dated in July 2018 (indicating that the Veteran’s May 2018 back surgery was performed at St. Louis University Hospital). As these private treatment records are pertinent to the pending appeal, the Board finds that this matter must be remanded in order for the outstanding records to be obtained and associated with the Veteran’s claims file. 2. Entitlement to a TDIU is remanded. As described in the Introduction, the claim for TDIU based upon the Veteran’s service-connected lumbar spine disability has been raised by the evidence of record. See Rice, supra; see also VAOGCPREC 06-96, 61 Fed. Reg. 66749 (1996). Therefore, the matter of entitlement to a TDIU is inextricably intertwined with the increased rating claim on appeal and must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). Upon remand, the Veteran should complete a VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability) and provide related employment details. The matters are REMANDED for the following action: 1. Obtain all outstanding records of VA and private evaluation and/or treatment of the Veteran including the surgical and post-surgical treatment records pertaining to the Veteran’s May 2018 lumbar spine surgery from St. Louis University Hospital and Dr. P.M., referenced above. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file. (Continued on the next page)   2. Provide the Veteran a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, to obtain relevant employment information. Then take any necessary development for the TDIU claim. 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to a TDIU. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. K. Buckley, Counsel 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.