Citation Nr: 21009679 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 09-08 025 DATE: February 23, 2021 REMANDED Entitlement to a total disability rating on the basis of individual unemployability due to service-connected disabilities (TDIU) prior to May 6, 2008 is remanded. Entitlement to a rating of 40 percent prior to December 1, 2016 for lumbar spine degenerative disc disease and arthritis and severe spinal stenosis is remanded. REASONS FOR REMAND The Veteran had active military service from March 1975 to May 1979. This claim comes to the Board of Veterans Appeals (Board) from a June 2007 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In a May 2017 rating decision, the RO granted entitlement to TDIU effective May 6, 2008. The claim was previously before the Board in October 2013, November 2015, and September 2017. As noted in the Board’s September 2017 decision, in November 2016 the RO issued a statement of the case with respect to the issues of entitlement to service connection for GERD and skin allergies and rashes. The record does not reflect that the Veteran filed a substantive appeal as to those issues. However, in March 2017 he submitted a cover letter referencing service connection for skin allergies and rashes along with a medical opinion letter concerning his GERD and Barret’s Esophagus. Again, in a March 2018 written statement, the Veteran expressed a desire to claim service connection for GERD, Barret’s Esophagus, and a skin condition. The Veteran’s submissions are referred to the AOJ for clarification of his intent to file a claim and any appropriate action. 1. Entitlement to a rating of 40 percent prior to December 1, 2016 for lumbar spine degenerative disc disease and arthritis and severe spinal stenosis is remanded. In a May 2017 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for the Veteran’s lumbar spine degenerative disc disease and arthritis and severe spinal stenosis, right and left lower extremity radiculopathy, left knee disability, and right and left hip disability. Specifically, the decision granted the following ratings for the Veteran’s back disability: a 10 percent rating effective April 28, 2006, a 20 percent rating effective May 6, 2008, a 40 percent rating effective May 31, 2011, a 20 percent rating effective June 18, 2015, and a 40 percent rating effective December 1, 2016. The Veteran was notified of that decision in a June 2017 letter. The record does not reflect that the Veteran has filed a VA Form 21-0958, Notice of Disagreement, in connection with that decision. However, in a March 2018 statement filed on a VA Form 9, the Veteran indicated disagreement with the effective date of the 40 percent rating granted for his back disability, arguing that the 40 percent rating should be effective as of April 28, 2006. For every case where the AOJ provides in connection with its decision a form for the purpose of initiating an appeal, a notice of disagreement consists of a completed and timely submitted copy of that form. 38 C.F.R. § 20.201(a) (2018). In a case where the AOJ does not provide a form identified as being for the purpose of initiating an appeal, a written communication from a claimant expressing disagreement with an adjudicative determination by the AOJ and a desire to contest the result will constitute a notice of disagreement. 38 C.F.R. § 20.201(b) (2018). Here, the list of enclosures on the June 2017 notification letter of the rating decision granting service connection for the Veteran’s back disability does not reflect that a VA Form 21-0958, Notice of Disagreement, was sent to the Veteran, although the notification letter referenced that he should file such a form to appeal the decision. As the Veteran was not provided a copy of a VA Form 21-0958, the Board finds that the Veteran’s March 2018 statement is a timely notice of disagreement pursuant to 38 C.F.R. § 20.201(b) on the issue of entitlement to a rating of 40 percent prior to December 1, 2016 for his service-connected back disability. As no statement of the case (SOC) has been issued addressing the issue of entitlement to a rating of 40 percent prior to December 1, 2016 for the Veteran’s service-connected back disability, the Board finds that a remand is necessary for the AOJ to issue a SOC. Manlincon v. West, 12 Vet. App. 238 (1999). 2. Entitlement to a total disability rating on the basis of individual unemployability due to service-connected disabilities (TDIU) prior to May 6, 2008 is remanded. The issue of entitlement to an effective date for entitlement to TDIU prior to May 6, 2008 is intertwined with the issue of entitlement to a rating of 40 percent prior to December 1, 2016 for his service-connected back disability as the outcome of that claim may affect the Veteran’s eligibility for an earlier effective date for TDIU. Therefore, the Board finds that the claims should be considered together. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 2 Vet. App. 180, 183 (1991) (issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on a Veteran’s claim for the second issue). (Continued on the next page)   The matters are REMANDED for the following action: Send the Veteran a Statement of the Case concerning his claim for entitlement to a rating of 40 percent prior to December 1, 2016 for lumbar spine degenerative disc disease and arthritis and severe spinal stenosis. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Christensen 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.