Citation Nr: 21072785
Decision Date: 12/06/21	Archive Date: 12/06/21

DOCKET NO. 14-11 283
DATE: December 6, 2021

REMANDED

Entitlement to an initial rating in excess of 20 percent prior to July 19, 2021 and in excess of 40 percent thereafter for a lumbar spine disorder is remanded.

Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded.

REASONS FOR REMAND

The Veteran served on active duty from June 1972 to June 1992. 

In June 2016, the Veteran testified before a Veterans Law Judge (VLJ) at a Board hearing.  A transcript of the hearing is of record. In April 2021, the Veteran was advised that the VLJ who conducted the June 2016 hearing was no longer employed by the Board and he was offered the opportunity to testify before a different VLJ.  The Board did not receive a response from the Veteran. The claim was returned for appellate review.

In June 2021, the Board most recently remanded the current claims for additional development. 

During the pendency of the appeal, in an August 2021 rating decision, the Agency of Original Jurisdiction (AOJ) granted an increased rating of 40 percent for the Veteran's lumbar spine disorder, effective July 19, 2021.  However, as such did not constitute a full grant of the benefit sought on appeal, the issue remains in appellate status.  See AB v. Brown, 6 Vet. App. 35 (1993).

1.  Entitlement to an initial increased disability rating for a lumbar spine disorder is remanded.

In the June 2021 remand, the Board specifically instructed the AOJ to obtain any outstanding VA or private treatment records.  In spite of the Board's request, however, there is also no indication as to whether the AOJ conducted development to attempt to obtain the Veteran's treatment records.  Significantly, in the July 2021 VA examination report, the Veteran indicated that he went to his primary care physician and the VA for care for his lumbar spine disorder and there are no VA or private treatment records associated with the record past April 2018.  Accordingly, the Board finds that the current evidence of record is insufficient to adequately adjudicate the Veteran's claim and there has not been substantial compliance with the Board's June 2021 remand directives.  See Stegall v. West, 11 Vet. App. 268, 271 (1998). 

2.  Entitlement to a TDIU due to service-connected disability is remanded.

Consideration of entitlement to a TDIU is dependent upon the impact of the Veteran's service-connected disabilities on his ability to obtain or retain substantially gainful employment.  Accordingly, the matter of a TDIU is inextricably intertwined with the claim remanded herein.  Harris v. Derwinski, 1 Vet. App. 180 (1991).  Remand of the inextricably intertwined TDIU claim is therefore required.

The matters are REMANDED for the following action:

With the Veteran's assistance, obtain any outstanding records of pertinent medical treatment from VA or private health care providers, to specifically include VA and private treatment records dated from April 2018.  All reasonable attempts to obtain such records should be made and documented.  If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e).

 

 

PAUL E. METZNER

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	C. Camille NeSmith, Associate 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.