Citation Nr: 21049366 Decision Date: 08/11/21 Archive Date: 08/11/21 DOCKET NO. 98-04 866 DATE: August 11, 2021 REMANDED For the period prior to February 27, 1998, claim for increased rating for a lumbar spine disability on an extraschedular basis is remanded. For the period prior to February 27, 1998, entitlement to a total disability rating based on an individual unemployability (TDIU) on an extraschedular basis is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1977 to July 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 1999 and March 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office in Cleveland, Ohio. In a March 2006 decision, the Board denied the TDIU claim and declined to exercise jurisdiction over the claim for the lumbar spine disability. Thereafter, the Veteran appealed the March 2006 Board decision with the United States Court of Appeals for Veterans Claims (CAVC). In an August 2008 memorandum decision, CAVC vacated the portion of the March 2006 Board decision that denied the TDIU claim; and it also reversed the Board's decision that it lacked jurisdiction over the Veteran's claim for his lumbar spine disability. In June 2009, the Board remanded the claims for TDIU and the lumbar spine disability for additional development. Again, in March 2012, the Board remanded the issues, but this time, it remanded the issues as extraschedular TDIU and lumbar spine disability rating claims, for further developments. In an August 2013 rating decision, the Regional Office increased the lumbar spine disability rating to 20 percent, effective August 28, 2006. In August 2015, the Board established an effective date for the 20 percent disability rating for the lumbar spine as April 19, 1995; and concomitantly, it increased the lumbar spine disability rating to 60 percent disabling, effective August 28, 2006. In this August 2015 Board decision, as well as in February 2018, the Board remanded the TDIU and the lumbar spine extraschedular rating claims for further, additional developments. In February 2021, the Board granted the TDIU claim for the period beginning February 27, 1998; it dismissed the extraschedular lumbar spine disability rating claim, as moot, for the period beginning February 27, 1998; and it also dismissed the extraschedular dysthymic disorder rating claim, as moot, for the period beginning February 27, 1998. As the Board dismissed the extraschedular dysthymic disorder rating claim for the period beginning February 27, 1998, this constitutes as a dismissal for the entire appellate period. Thus, this extraschedular dysthymic disorder rating claim is no longer on appeal, as the Board's February 2021 dismissal is a complete adjudication of all the issues arising out of this extraschedular dysthymic disorder claim. Additionally, in the same February 2021 decision, the Board remanded the remaining TDIU and lumbar spine disability extraschedular claims for the period prior to February 27, 1998, for further developments. While these issues have now returned to the Board for adjudication, unfortunately, another remand is required, as the Regional Office did not complete all of the developments, per the February 2021 remand directives. TDIU and Lumbar Spine Extraschedular Claims In the February 2021 remand, the Board noted, among other findings, that a previous December 2019 opinion from the Director of Compensation and Pension Service only considered or referenced evidence from 1998 to the present for the extraschedular lumbar spine disability claim; and that the opinion did not consider whether an extraschedular rating for the lumbar spine disability was warranted for the period of April 1995 to February 1998. Finding that there was no substantial compliance with prior remand directives, the Board remanded both TDIU and lumbar spine disability extraschedular claims. In its directives, the Board specifically instructed that the Regional Office: (1) refer the extraschedular lumbar spine disability claim, for an opinion, to the Direct of Compensation and Pension Service, for the period prior to February 27, 1998; and (2) refer the extraschedular TDIU claim, for an opinion, to the Director of Compensation and Pension Service, for the period prior to February 27, 1998. Although the Regional Office obtained the requisite opinion for the extraschedular TDIU claim for the period prior to February 27, 1998, it, however, did not obtain an opinion from the Direct of Compensation and Pension Service for the extraschedular lumbar spine disability claim. A Board remand confers on the Veteran, as a matter of law, the right to substantial compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Thus, as the Regional Office did not substantially comply with prior Board remand directives, a remand is required for substantial compliance with the February 2021 Board remand directives, and specifically, obtaining the outstanding opinion for the extraschedular lumbar spine disability from the Director of Compensation and Pension Service. As the extraschedular TDIU claim is intertwined with the extraschedular lumbar spine disability claim, the extraschedular TDIU issue is also remanded, pending the Director of Compensation and Pension Service's findings and the outcome of the extraschedular lumbar spine disability claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a claim is inextricably intertwined with another claim, the claims must be adjudicated together). The matters are REMANDED for the following action: Refer the claim to the Director of Compensation and Pension Service, for an opinion addressing the propriety of an extraschedular rating for the lumbar spine disability, for the period prior February 27, 1998. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V-N. Pratt 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.