Citation Nr: 21031668
Decision Date: 05/24/21	Archive Date: 05/24/21

DOCKET NO. 18-05 878
DATE: May 24, 2021

REMANDED

The claim of entitlement to an increased evaluation for lumbar spine disability, rated as 20 percent disabling until October 14, 2020 and as 40 percent disabling since then, is remanded.

REASONS FOR REMAND

The Veteran served on active duty from April 2009 until July 2011.      

This matter comes to the Board of Veterans' Appeals (Board) on appeal of a rating decision by a U.S. Department of Veterans Affairs (VA) Regional Office (RO).

In December 2019, the Veteran testified in a hearing before the Board.  A transcript of the hearing has been included in the electronic claims file and has been reviewed.

In January 2020, the Board remanded the claim on appeal for additional development.  The case is again before the Board for appellate review.  

The issue must be remanded again because it is intertwined with an issue pending before the RO.  

In an October 2020 rating decision, the RO granted an increased rating to 40 percent for back disability and indicated that a total disability rating based on individual unemployability (TDIU) may be warranted based on the back disability.  The RO deferred adjudication of the TDIU issue so it is currently pending.  

Then in December 2020, the Veteran submitted a medical opinion from a physician who argues that, due to back disability, a TDIU has been warranted for several years.  

As such, a decision on the claim on appeal should be deferred.  See Smith v. Gober, 236 F.3d 1370, 1372 (Fed. Cir. 2001) (the appropriate remedy when a pending claim is inextricably intertwined with a claim on appeal is to defer adjudication of the claim on appeal pending the adjudication of the inextricably intertwined claim).

The matter is REMANDED for the following action:

Once the claim regarding the TDIU has been finally decided, readjudicate the claim of entitlement to an increased rating for back disability, and then return the case to the Board if in order.

 

 

G. A. WASIK

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Christopher McEntee, 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 This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.