Citation Nr: 0800739 Decision Date: 01/08/08 Archive Date: 01/22/08 DOCKET NO. 06-38 036 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to an increased rating for residuals of a lower back strain, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jennifer Margulies, Associate Counsel INTRODUCTION The veteran served on active duty from January 1975 to July 1994. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision of the Reno, Nevada, Department of Veterans Affairs (VA) Regional Office (RO), which continued a 10 percent rating for residuals of a low back strain. A rating decision conducted in July 2007, assigned a 20 percent rating for low back disability effective from May 30, 2007. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Additional development is necessary before the claim can be adjudicated on the merits. At the veteran's videoconference hearing held in November 2007, the veteran stated that he has been receiving treatment with Dr. Kromaski at the East Clinic in Las Vegas, Nevada. He stated that his next treatment was going to be on December 3, 2007. He also stated that he had been to the doctor a week before his hearing. Those reports are not of record. Because the claims file does not contain the updated medical records of the veteran additional development in this regard is needed. See Bell v. Derwinski, 2 Vet. App. 611 (1992). In May 1995, service connection for residuals of a low back strain was granted and rated as 10 percent disabling, effective from August 1, 1994. In relevant part, the RO received the veteran's informal claim seeking an increased rating for his low back disability in February 2006. By rating decision in June 2006, the RO confirmed and continued the 10 percent evaluation. However, as noted above, in July 2007, the RO increased the 10 percent rating to 20 percent effective from May 30, 2007. Although this appeal does not stem from an initial rating determination, the Board notes that in Hart v. Mansfield, No. 05-2424 (U.S. Vet. App. Nov. 19, 2007), the United States Court of Appeals for Veterans Claims (Court) held that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The Court found "no basis for drawing a distinction between initial ratings and increased-rating claims for applying staged ratings." Given the procedural development in this case, consideration of this matter is warranted. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should contact the veteran and obtain the name, address and dates of treatment of any medical provider pertaining to his low back strain since 2007. After securing the necessary releases, the RO should then obtain the veteran's treatment records from any identified medical providers, including medical reports from the East Clinic in Las Vegas, Nevada. If such efforts prove unsuccessful, all appropriate documentation should be incorporated into the claims file. 2. After accomplishing any additional development deemed appropriate, the RO/AMC should readjudicate the issue on appeal, to include consideration of Hart v. Mansfield, No. 05-2424 (U.S. Vet. App. Nov. 19, 2007). If the desired benefit is not granted to the veteran's satisfaction, a supplemental statement of the case should be furnished to the veteran and his representative, and the appropriate time period within which to respond should be provided. The case should then be returned to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2007).