Citation Nr: 21008253
Decision Date: 02/12/21	Archive Date: 02/12/21

DOCKET NO. 14-10 255
DATE: February 12, 2021

REMANDED

Entitlement to an initial rating in excess of 10 percent for chronic lumbosacral strain is remanded.

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

REASONS FOR REMAND

The Veteran had active service from May 1989 to January 1993, including in the southwest Asia theater of operations during the Persian Gulf War.

In November 2019, the Board most recently remanded these issues for further development. With respect to the issues decided herein, the Board finds that there has not been substantial compliance with the prior Board remand directives. See Stegall v. West, 11Vet. App.268 (1998)

Entitlement to an initial rating in excess of 10 percent for chronic lumbosacral strain is remanded.

The Board of Veterans’ Appeals (Board) remanded this matter in November 2019 to, in pertinent part, request a completed VA Form 21-4142 from the Veteran regarding any additional private facilities that have treated her low back disorder. It was specifically noted that two requests were to be made for the authorized records from any identified facilities, unless it is clear after the first request that a second request would be futile. It does not appear that the regional office (RO) made more than one attempt to locate the Veteran’s records nor is there any indication that a second request would be futile. See Stegall v. West, 11 Vet. App. 268, 271 (1998).

On remand, another attempt should be made to request a completed VA Form 21-4142 from the Veteran regarding any additional treatment in private facilities.

Entitlement to a TDIU is remanded.

Relevant to the Veteran’s claim for a TDIU, the Board finds such is inextricably intertwined with the Veteran’s increased rating claim remanded herein, as the outcome of such could possibly have bearing on the Veteran’s claim fora TDIU.  See Tyrues v. Shinseki, 23Vet. App.166, 177(2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim); Harris v. Derwinski, 1 Vet. App.180, 183 (1991).

The matters are REMANDED for the following action:

1. Ask the Veteran to complete a VA Form 21-4142 regarding any additional treatment in private facilities. Make two requests for the authorized records unless it is clear after the first request that a second request would be futile.

2. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of TDIU.  If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond.  If necessary, return the case to the Board for further appellate review.

 

3. Readjudicate the appeal

 

 

L. M. BARNARD

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	R. A. Elliott II, 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.