Citation Nr: 21031113 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 16-10 982 DATE: May 20, 2021 REMANDED Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1989 to March 1994. In April 2019, he testified in support of these claims during a hearing before the undersigned Veterans Law Judge of the Board. A transcript of the proceeding is of record. The Board sees the Veteran's ex-wife has filed a claim for apportionment of his VA disability benefits for during the time they were separated before their divorce was finalized. That is what is referred to as a contested claim. Although that other claim was discussed during the April 2019 hearing before this Board, that is a separate claim and issue that is not currently before the Board. The ex-wife was permitted to sit in on the hearing only to the extent it concerned that other claim since it is simultaneously contested, meaning she had a legal right to attend the hearing to the extent the Veteran's testimony involved that other claim. The claim for apportionment was originally denied in an April 2017 administrative decision and, in response, the Veteran's ex-wife filed a Notice of Disagreement (NOD) in July 2017. This other claim, however, is still pending before the Agency of Original Jurisdiction (AOJ). Consequently, this apportionment issue will not be discussed in this remand. See 38 C.F.R. § 19.8; BVA Directive 8430 (May 17, 1999) Subpart 13(c)(7). The Board does this to ensure the Veteran's privacy is preserved regarding the claims being discussed in this remand that conversely are before the Board. 1. Entitlement to service connection for a lumbar spine disability is remanded. A remand by the Board confers on the Veteran, as a matter of law, the right compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268 (1998). The Board already has remanded this claim twice and, regrettably, yet again must remand this claim. Following a July 2020 remand, the local Regional Office (RO) completed the necessary development insofar as obtaining an adequate opinion regarding service connection for the Veteran's lumbar spine disability as secondary to his service-connected disabilities, as well as requesting that he submit an updated TDIU application (VA Form 21-8940). Unfortunately, however, it does not appear that the VA examiner offered any opinion regarding the additional notion of direct service connection for the Veteran's lumbar spine disability. So, there only has been compliance with a portion of the Board's prior remand directives, not all of them, and there has not been the acceptable substantial compliance that would permit the Board going ahead and adjudicating this claim. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 2. Entitlement to a TDIU is remanded. This TDIU claim is inextricably intertwined with the claim for service connection for a lumbar spine disability, as the resolution of the latter will define both the scope and substance of the analysis of the former. Thus, consideration of this derivative TDIU claim must be deferred pending completion of the necessary additional development being directed concerning the claim for service connection for a lumbar spine disability. Accordingly, these claims are REMANDED for the following action: Obtain a supplemental (addendum) medical opinion from a qualified clinician concerning the nature and etiology of the Veteran's lumbar spine disability, specifically in terms of whether it is at least as likely as not (a 50 percent or greater probability) that it began during his service from November 1989 to March 1994, or within a year of his discharge (if involving arthritis), so by March 1995, or is otherwise directly related or attributable to a disease, an event, or an injury in service? To assist in making this determination, the claims file must be made available to the clinician, including a complete copy of this remand *This supplemental medical comment is needed in addition to that already provided concerning alternatively whether it is at least as likely as not the Veteran's lumbar spine disability is secondary to any of his service-connected disabilities, but especially his bilateral pes planus. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Baronofsky 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.