Citation Nr: 1032366 Decision Date: 08/27/10 Archive Date: 09/01/10 DOCKET NO. 04-41 523A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased evaluation for a cervical spine disability, currently evaluated as 10 percent disabling. 2. Entitlement to an initial evaluation in excess of 10 percent for headaches. REPRESENTATION Veteran represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran had active service from October 1983 to December 1987. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. By this rating action, the RO continued a 10 percent evaluation assigned to the service-connected cervical spine disability. The Veteran appealed the RO's August 2002 rating action to the Board. This appeal also stems from a June 2003 rating action. By that rating action, the RO awarded service connection for headaches; an initial noncompensable evaluation was assigned, effective April 14, 2003--the date VA received the Veteran's initial claim for compensation for this disability. The Veteran appealed the RO's June 2003 rating action to the Board. By an October 2004 rating action, the RO awarded an initial 10 percent evaluation to the service-connected headaches, effective April 14, 2003. In June 2007, the Board remanded the increased and initial evaluation claims on appeal to the RO for additional development. The case has returned to the Board for appellate consideration. The appeal is REMANDED to the RO/Appeals Management Center (AMC) in Washington, DC. VA will notify the Veteran if further action is required. REMAND After a review of the claims files, the Board finds that another remand is required with respect to the increased and initial evaluation claims on appeal. On May 25, 2010, the St. Petersburg, Florida RO received a medical opinion authored by Craig N. Bash, M. D., M. B. A., Neuro-Radiology, dated May 13, 2010. The RO did not issue a Supplemental Statement of the Case addressing this evidence. The evidence was not accompanied with a waiver of initial RO consideration. In a July 2010 written argument to the Board, the Veteran's representative indicated that on VA Form 3230, dated June 22, 2010, the Veteran was asked if he was willing to waive initial RO consideration of the above opinion. The Veteran's representative responded that the May 2010 "submissions are not explicitly waived." In such a situation, the law requires that the RO initially consider the evidence, re-adjudicate the claim, and issue an appropriate supplemental statement of the case (SSOC). 38 C.F.R. §§ 19.31, 19.37, 20.1304(c) (2009). Accordingly, the case is REMANDED to the RO/AMC for the following action: After undertaking any further development deemed warranted by the record, the RO/AMC must review the claims of entitlement to an increased rating for a cervical spine disability, currently evaluated as 10 percent disabling, and entitlement to an initial rating in excess of 10 percent for headaches. If a determination remains adverse to the Veteran, he and his representative must be furnished a Supplemental Statement of the Case (SSOC) that addresses all of the evidence received after issuance of the December 2009 SSOC. The Veteran and his representative must then be given an opportunity to submit written or other argument in response thereto. The purpose of this remand is to comply with all due process considerations. The Veteran does not need to take any action until he is so informed. He has the right to submit additional evidence and argument on the matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). No inference should be drawn regarding the final disposition of the increased and initial evaluation claims on appeal as a result of this action. These claims 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). _________________________________________________ Vito A. Clementi 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).