Citation Nr: 1000294 Decision Date: 01/04/10 Archive Date: 01/14/10 DOCKET NO. 00-01 946 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to an initial rating in excess of 10 percent for lumbosacral strain with degenerative joint disease. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran served on military duty that included service in the National Guard from March 1988 to October 1999; active duty from April 1988 to August 1988 and October 1990 to February 1991 is demonstrated. This case was previously before the Board of Veterans' Appeals (hereinafter Board) on appeal from adverse action by the Department of Veterans Affairs (hereinafter VA) Regional Office in Louisville, Kentucky, (hereinafter RO). The case has been remanded by the Board on multiple occasions, most recently in October 2007, wherein the Board granted service connection for degenerative disc disease of the lumbar spine and remanded the issue of service-connected back disability, including lumbosacral strain, for further development. In a January 2008 rating decision, service-connected lumbar strain, to include degenerative joint disease, was continued as 10 percent disabling. Subsequently in a July 2008 rating decision, a temporary 100 percent evaluation was assigned effective June 27, 2002, based on surgical or other treatment necessitating convalescence, and a 10 percent evaluation was assigned from September 1, 2002. After being afforded a hearing in June 2003 before a Veterans Law Judge who has retired, a hearing was held in March 2007 before the Veterans Law Judge signing this document, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c) (West 2002). In its July 2009 informal hearing presentation, the Veteran's representative appears to raise claims for service connection for scars post L3-4 and L4-5 surgeries. These issues have not been developed for appellate review and are referred to the RO for appropriate consideration. 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 In October 2007, the Board remanded the matter on appeal for a VA examination to evaluate the severity of the service- connected lumbar spine disability. The Board instructed the RO to readjudicate the issue after all development had been completed. The Board specifically instructed the RO to issue a supplemental statement of the case (SSOC) in the event that the RO's action did not result in a complete grant of all benefits sought. Pursuant to the Board's October 2007 remand instructions, the Veteran was afforded examinations for his service-connected spine disability in April 2008, November 2008, and on three separate occasions in March 2009. The RO issued an SSOC in May 2009 in which it listed and discussed relevant treatment records, the April 2008 examination report, and the three March 2009 examination reports. Absent from the list of evidence and discussion in the SSOC was the November 2008 examination report. In this regard, the Board notes that the November 2008 examination report is in a temporary folder and it is unclear whether the RO had access to this file when rendering the May 2009 SSOC. In fact, in its July 2009 informal hearing presentation, the Veteran's representative pointed out that the SSOC had not included discussion of the most recent November 2008 VA examination report, and that the Veteran's claims folders were in "disarray." Additionally, the Board notes that the temporary folder also includes private treatment records dated from March 2008 to September 2008, and lay statements received in August 2008 from the Veteran and his apartment building manager attesting to the effects of his disability on his daily activities. None of this evidence was discussed in the May 2009 SSOC. Accordingly, the Veteran's claim must be remanded for the RO to consider all evidence of record received since the last complete SSOC was issued in March 2006, to specifically include the November 2008 VA examination report, the additional private medical records dated from March 2008 to September 2008, and the lay statements received in August 2008. Accordingly, the case is REMANDED for the following action: Readjudicate the Veteran's claim for an increased rating for lumbosacral strain with degenerative joint disease in light of any evidence received after the last complete SSOC was issued in March 2006, to specifically include the November 2008 VA examination report, the additional private medical records dated from March 2008 to September 2008, and the lay statements received in August 2008 all contained in the temporary folder. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with another SSOC that contains notice of all relevant actions taken. An appropriate period of time should be allowed for response by the Veteran and his representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. The appellant has the right to submit additional evidence and argument on the matter 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. 2009). _________________________________________________ MICHELLE KANE 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) (2009).