Citation Nr: 1003752 Decision Date: 01/26/10 Archive Date: 02/16/10 DOCKET NO. 07-34 725A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to an initial rating higher than 10 percent for service-connected chronic low back pain with sciatica from October 29, 2006 to November 1, 2007. 2. Entitlement to an initial rating higher than 20 percent for service-connected chronic low back pain with sciatica from November 1, 2007. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Lawrence W. Klute, Associate Counsel INTRODUCTION The Veteran served on active duty from October 2003 to October 2006. This matter comes to the Board of Veterans' Appeals (the Board) on appeal from a May 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (the RO) in Indianapolis, Indiana. In the May 2007 rating decision, the RO granted service connection for low back pain with sciatica with a 10 percent disability rating, effective October 29, 2006 [the day after the Veteran was discharged from service]. During the course of this appeal, in a January 2009 rating decision, the RO granted a 20 percent disability rating for the service-connected low back pain with sciatica, effective from November 1, 2007. The Veteran has not indicated satisfaction with the assigned rating; thus the increased rating issue remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993) [when a Veteran is not granted the maximum benefit allowable under the VA Schedule for Rating Disabilities, the pending appeal as to that issue is not abrogated]. The appeal is REMANDED to the RO via the VA Appeals Management Center (AMC) in Washington, DC. VA will notify the Veteran if further action is required on his part. Matters not on appeal In its May 2007 rating decision, the RO denied service connection for adjustment disorder. In an October 2007 rating decision, the RO granted service connection for radiculopathy of the right lower extremity with a 10 percent disability rating assigned. In a May 2008 rating decision, the RO granted service connection for posttraumatic stress disorder (PTSD) with a 50 percent disability rating assigned; granted service connection for tinnitus with a 10 percent disability rating assigned; and denied service connection for hearing loss and a left ankle condition. The Veteran has not disagreed with these decisions. See Archbold v. Brown, 9 Vet. App. 124, 130 (1996) [pursuant to 38 U.S.C.A. § 7105(a), the filing of a notice of disagreement initiates appellate review in the VA administrative adjudication process, and the request for appellate review is completed by the claimant's filing of a substantive appeal after a statement of the case is issued by VA]. Therefore, these issues are not in appellate status. Accordingly, they will be discussed no further herein. Matters referred to the RO The Veteran has filed new claims of entitlement to service connection for sleep apnea and headaches, and for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). These issues have not been adjudicated by the agency of original jurisdiction. They are referred to the RO for such additional action as may be appropriate. See Godfrey v. Brown, 7 Vet. App. 398 (1995) [the Board does not have jurisdiction of issues not yet adjudicated by the RO]; see also Bernard v. Brown, 4 Vet. App. 384 (1993). REMAND For reasons expressed immediately below, the Board believes that this case must be remanded for further procedural development. The latest supplemental statement of the case (SSOC) was dated February 17, 2009. The RO certified the appeal to the Board on April 4, 2009. New evidence in the form of a VA compensation and pension examination dated October 17, 2009, specifically relating to the Veteran's service-connected back disability, was received by the Board from the RO on October 28, 2009. It appears that the RO merely forwarded the examination report to the board without reviewing it. In an Informal Hearing presentation dated January 12, 2010, the Veteran's representative chose not to waive consideration of this new evidence by the RO, and requested that it be remanded to the RO for appropriate adjudicative review. In the absence of a waiver of RO consideration, the representative's request must be granted, and the case must be remanded. See 38 C.F.R. § 20.1304 (2009). Accordingly, this case is REMANDED to the Veterans Benefits Administration (VBA) for the following actions: 1. VBA should ask the Veteran to identify any additional medical treatment records that he wants VA to help him obtain. If he provides appropriate releases, or identifies any VA treatment, VBA should assist him in obtaining the records identified, following the procedures in 38 C.F.R. § 3.159 (2009). Any such evidence obtained should be associated with the claims folder. 2. VBA should then review the record and readjudicate the issues on appeal. If the decision remains unfavorable to the Veteran, a supplemental statement of the case (SSOC) should be prepared. The Veteran and his counsel should be provided with the SSOC and an appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. See 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 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). _________________________________________________ Barry F. Bohan 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).