Citation Nr: 21028745 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 11-28 002 DATE: May 11, 2021 REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to a compensable rating for right ear hearing loss is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to June 6, 2019, is remanded. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1990 to April 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2009 and July 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). This matter previously was before the Board in June 2018, November 2019, and January 2021 when it was remanded for additional development. The Board finds that appellate review is frustrated by the RO's apparent failure to comply with prior remand directives. Having reviewed the record evidence, and although the Board is reluctant to contribute to "the hamster-wheel reputation of Veterans law" by remanding this appeal again, additional development is required before the underlying claims can be adjudicated on the merits. Cf. Coburn v. Nicholson, 19 Vet. App. 427, 434 (2006) (Lance, J., dissenting) (finding that repeated remands "perpetuate the hamster-wheel reputation of Veterans law"). REASONS FOR REMAND 1. Entitlement to service connection for a back disability is remanded. The Veteran has claimed that he was treated at the San Juan, Puerto Rico VA Medical Center (San Juan VAMC) as early as 1992. Although some of his records from that facility have been obtained, it appears that there are gaps in time for which records either have not been obtained or do not exist. For example, there are no treatment records from that facility dated from April 2003 to September 2005, December 2006 to September 2011, and from October 2013 to May 2016. It is unclear whether all of the Veteran's VA outpatient treatment records, to include his records from the San Juan VAMC, have been obtained or are not available for review. The United States Court of Appeals for Veterans Claims (Court) has held that VA is on constructive notice of all documents generated by VA, even if the documents have not been made part of the record in a claim for benefits. See Bell v. Derwinski, 2 Vet. App. 611 (1992). Thus, the Board finds that, on remand, the Veteran's complete VA outpatient treatment records dated since his separation from active service, to include any records which may be available from the San Juan VAMC, should be obtained. 2. Entitlement to a compensable rating for right ear hearing loss is remanded. The Board's January 2021 remand noted that there was no indication that the Agency of Original Jurisdiction (AOJ) considered an October 2020 VA audiological examination report in adjudicating the claim of entitlement to a compensable rating for right ear hearing loss because this report was not listed as evidence or referred to by the AOJ in any subsequent Supplemental Statement of the Case (SSOC). There still is no indication that the AOJ considered this evidence or complied with the January 2021 remand directive on this matter. To date, the Veteran has not waived AOJ consideration of this evidence. Thus, the Board finds that, on remand, the AOJ should readjudicate this claim and consider this examination report. In Stegall v. West, 11 Vet. App. 268 (1998), the Court held that a remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders. It was error for the AOJ to re-certify this appeal to the Board without complying with the prior remand instructions on this matter. Given this error, another remand is required. 3. Entitlement to a TDIU prior to June 6, 2019 is remanded. The Board finds that the Veteran's claim of entitlement to a TDIU prior to June 6, 2019, is inextricably intertwined with the other claims being remanded here. See Tyrues v. Shinseki, 23 Vet. 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). As such, adjudication of the TDIU claim must be deferred. See also Henderson v. West, 12 Vet. App. 11, 20 (1998), citing Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are inextricably intertwined when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). The matters are REMANDED for the following action: 1. Obtain all of the Veteran's VA treatment records dated from April 1991 to the present, to include any records which may be available from the San Juan VAMC during this time period. A copy of any request(s) for these records, and any reply, to include a negative reply or any records obtained, should be associated with the claims file. If no additional records exist, then that fact must be documented in the claims file. 2. Thereafter, readjudicate the appeal. The AOJ must consider the October 2020 VA audiological examination report in readjudicating the increased rating claim for right ear hearing loss and note consideration of this evidence in a supplemental statement of the case. MICHAEL T. OSBORNE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Banks, 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.