Citation Nr: 21022913 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 15-34 468 DATE: April 19, 2021 REMANDED The issues of entitlement to an initial rating in excess of 20 percent for degenerative lumbar disc disease with spinal stenosis and entitlement to a total disability rating based on individual unemployability (TDIU) are remanded for additional development. REASONS FOR REMAND The Veteran served on active duty from May 1971 to May 1974. These matters come before the Board of Veterans’ Appeal (Board) on appeal from July 2013 and May 2016 rating decisions from a Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for degenerative lumbar disc disease with spinal stenosis and continued a 10 percent rating, effective May 17, 2012. In October 2019, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. In January 2020, the Board remanded the claims for further evidentiary development. In a November 2020 rating decision, the RO increased the Veteran’s initial rating for his degenerative lumbar disc disease with spinal stenosis to a 20 percent rating, effective May 17, 2012, and denied entitlement to a TDIU. That same month, a Supplemental Statement of the Case (SSOC) was issued. However, the SSOC only addressed the issue of entitlement to a TDIU. As the issue of entitlement to an initial rating in excess of 20 percent for degenerative lumbar disc disease with spinal stenosis did not represent a total grant of benefits sought, it remains on appeal and is for consideration by the Board. See AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded). The Board remanded the case in January 2020 and, in its fourth directive, instructed the RO to readjudicate the matters and issue a SSOC. As the RO did not address the issue of entitlement to an initial rating in excess of 20 percent for degenerative lumbar disc disease with spinal stenosis, it did not comply with the remand directives. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Id. Furthermore, the AOJ is required to issue an SSOC when, pursuant to a Board remand, it develops evidence or cures a procedural defect. 38 C.F.R. § 19.31(c). The only exceptions allowed for by the regulation are if: (1) the only purpose of the remand is to assemble records previously considered by the AOJ and properly discussed in a prior statement of the case or SSOC, or (2) the Board specifies in the remand that a SSOC is not required. 38 C.F.R. § 19.31(c). The Board’s January 2020 remand falls under neither exception. Accordingly, on remand the RO must issue a SSOC after a review of all relevant evidence. The issue of entitlement to a TDIU is inextricably intertwined with the issue of entitlement to an initial rating in excess of 10 percent for degenerative lumbar disc disease with spinal stenosis, remanded herein. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the Board must defer deciding this claim, pending the outcome of the intertwined claim. The matters are REMANDED for the following action: Readjudicate the claims on appeal, including entitlement to an initial rating in excess of 20 percent for degenerative lumbar disc disease with spinal stenosis and entitlement to a TDIU. If the benefits on appeal remain denied, furnish the Veteran and his representative with a copy of a supplemental statement of the case (SSOC) and allow an appropriate time for response. Thereafter, return the file to the Board for further appellate consideration. S.C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Bilstein, 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.