Citation Nr: 0813132 Decision Date: 04/21/08 Archive Date: 05/01/08 DOCKET NO. 03-26 299 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a low back disability, claimed as arthralgia of the lumbosacral spine. 2. Entitlement to an initial increased evaluation for post- traumatic stress disorder (PTSD), currently evaluated as 30 percent disabling. REPRESENTATION Veteran represented by: Alabama Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. B. Mays, Counsel INTRODUCTION The veteran served on active duty from March 1964 to October 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2003 rating decision of the Montgomery, Alabama Regional Office (RO) of the Department of Veterans Affairs (VA), which, in pertinent part, denied service connection for arthralgia of the lumbosacral spine, and granted service connection for PTSD, assigning a 10 percent evaluation, effective July 1, 2002. In October 2004, the veteran presented testimony before a Decision Review Officer sitting at the RO. A transcript of the hearing is associated with the claims folder and has been reviewed. In a July 2005, the RO increased the evaluation assigned for PTSD to 30 percent, effective July 1, 2002. In a September 2005 statement, the veteran indicated that he wanted an evaluation in excess of 30 percent for service-connected PTSD. The Board observes that in a July 2002 letter, the RO considered the veteran's back claim as a request to reopen a previously denied claim. Specifically, the RO indicated that it had previously denied a low back claim in an April 2000 rating decision. On review, however, the Board concludes that a back claim was not previously denied in the April 2000 rating decision. In such decision, the RO adjudicated a service connection claim for "arthritis." There is no indication that the veteran intended to file a service connection claim for arthritis of the back. Review of the evidence submitted at that time showed no evidence of arthritis of the back. The evidence at that time did show a diagnosis of arthritis of the left shoulder. Therefore, the Board concludes that the proper issue on appeal is the one reflected on the title page of this decision, as opposed to a claim to reopen. There is no prejudice to the veteran by recharacterizing the issue, as the RO essentially decided the veteran's claim on the merits. See Bernard v. Brown, 4 Vet. App. 384 (1993). In October 2006, the Board denied the veteran's service connection claim for a low back disability, and an increased rating claim for PTSD. The veteran filed a timely appeal of that decision to the United States Court of Appeals for Veterans Claims (Court). While the case was pending at the Court, the VA Office of General Counsel and the veteran's representative filed a Joint Motion for Remand, received in December 2007, requesting that the Court vacate the Board's October 2006 decision, and remand the issues for further development. In December 2007, the Court granted the motion and vacated the October 2006 decision. Thus, the issues of entitlement to service connection for a back disability, and increased rating claim for PTSD have been returned to the Board for proceedings consistent with the Joint Motion for Remand. 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 The veteran is seeking service connection for a back disability, and an increased rating for his service-connected PTSD. Pursuant to the Court's December 2007 Order, additional development is required. On his VA Form-9, substantive appeal, the veteran requested the opportunity to present testimony in support of his claim at a personal hearing before a Veterans Law Judge. Such a hearing was scheduled in June 2006. Prior to the scheduled hearing, in May 2006, the RO sent a letter to the veteran advising him that a hearing had been scheduled, however, as noted in the Joint Motion for Remand, the letter was addressed to the wrong zip code. As such, the Board finds that the veteran should be scheduled for another Travel Board hearing, and the RO should ensure that the notice letter is sent to the veteran's latest address of record. Accordingly, the case is REMANDED for the following action: Schedule the veteran for a Travel Board hearing at the RO. Notify him of the scheduled hearing at the latest address of record, to include the correct zip code. The veteran, and his representative, should be notified in writing of the date, time and location of the hearing. After the hearing is conducted, or if the veteran fails to report for the scheduled hearing, the claims folder should be returned to the Board, in accordance with appellate procedures. Thereafter, the case should be returned to the Board for further appellate consideration. 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). _________________________________________________ THOMAS J. DANNAHER 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).