Citation Nr: 1103976 Decision Date: 01/04/11 Archive Date: 02/08/11 DOCKET NO. 01-09 117 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUES 1. Entitlement to an initial, extra-schedular rating in excess of 40 percent for lumbar disc disease. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Sean A. Ravin, Attorney WITNESSES AT HEARING ON APPEAL Appellant and a physician ATTORNEY FOR THE BOARD David A. Brenningmeyer, Counsel INTRODUCTION The Veteran served on active duty from May to November 2000. This appeal to the Board of Veterans' Appeals (Board) arose from a May 2001 rating decision in which the RO, inter alia, granted service connection and assigned an initial schedular 20 percent rating for lumbar disc bulge with degenerative joint disease, effective November 21, 2000. In July 2001, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in September 2001, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in October 2001. By rating action of May 2002, the RO granted an initial, 40 percent schedular rating for lumbar disc disease with radicular symptoms, effective November 21, 2000; the matter of an initial rating in excess of 40 percent remained for appellate consideration. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); AB v. Brown, 6 Vet. App. 35, 38 (1993). In November 2002, the undersigned granted the appellant's motion to advance this appeal on the Board's docket, pursuant to 38 U.S.C.A. § 7107(a)(2)(C) (West 2002) and 38 C.F.R. § 20.900(c) (2002). In February and March 2003, the Board requested additional development of the claim on appeal pursuant to the provisions of 38 C.F.R. § 19.9 (2002). In June 2003, the Board remanded the matter to the RO for completion of the actions requested. At that time, it was noted that the provisions of 38 C.F.R. § 19.9, essentially conferring upon the Board jurisdiction to adjudicate claims on the basis of evidence developed by the Board, but not reviewed by the RO, had been held to be invalid. Disabled American Veterans (DAV) v. Secretary of Veterans Affairs (Secretary), 327 F.3d 1339 (Fed. Cir. 2003). After taking further action, the RO continued to deny the claim (as reflected in a July 2003 supplemental SOC (SSOC)) and returned the matter on appeal to the Board for further consideration. In October 2003, the Board denied an initial rating in excess of 40 percent for lumbar disc disease. The Veteran appealed the October 2003 Board decision to the United States Court of Appeals for Veterans Claims (Court). In February 2004, the Court granted a joint motion for remand filed by representatives for both parties, vacating the Board's decision, and remanding the claim to the Board for further proceedings consistent with the joint motion. In July 2004, the Board remanded the Veteran's claim to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further action. After taking further action, the RO continued to deny the claim (as reflected in an August 2004 SSOC) and returned the matter on appeal to the Board for further consideration. In October 2004, the Board denied an initial, schedular rating in excess of 40 percent for lumbar disc disease, and remanded to the RO, via the AMC, the matter of an initial, extra-schedular rating in excess of 40 percent for the disability for further action, to include initial adjudication by the RO. After completing the requested action, the RO denied the claim (as reflected in a January 2005 SSOC), and returned this matter to the Board for appellate consideration. This appeal also arises from a December 2003 rating decision in which the RO denied a TDIU. In January 2004, the Veteran filed an NOD. An SOC was issued in November 2004, and the Veteran filed a substantive appeal in December 2004. In January 2006, the Veteran and a physician, C. Bash, M.D., testified during a Board hearing before the undersigned Veterans Law Judge in Washington, D.C. A transcript of that hearing is of record. In April 2006, the Board denied an initial extra-schedular rating in excess of 40 percent for lumbar disc disease, and a TDIU. The Veteran appealed the April 2006 Board decision to the Court. In April 2007, the Court granted a joint motion for remand filed by representatives for both parties, vacating the Board's decision, and remanding the claims to the Board for further proceedings consistent with the joint motion. In November 2007, the Board remanded both claims remaining on appeal to the RO, via the AMC, for further action, to include additional development of the evidence. After completing the requested development, the RO continued to deny the claims (as reflected in a February 2010 SSOC) and returned these matters to the Board for further appellate consideration. In May 2010, the Veteran's attorney requested a 60-day abeyance period for submission of additional evidence and argument in support of the claims. In July 2010, the undersigned granted that request. No additional evidence or argument has since been received. For the reasons expressed below, the matters on appeal are again being remanded to the RO, via the AMC. VA will notify the Veteran when further action, on her part, is required. REMAND Unfortunately the Board finds that further RO action on the claims on appeal is warranted, even though such will, regrettably, further delay an appellate decision on these matters. The Veteran's claims were most recently transferred to the Board on April 1, 2010. In June 2010, the RO forwarded to the Board additional evidence submitted to the RO by the Veteran and her representative on April 27, 2010, including two April 2010 lay statements attesting to the severity of the Veteran's low back disability as far back as 15 years prior. Applicable VA regulations require that pertinent evidence submitted by an appellant must be referred to the agency of original jurisdiction for review and preparation of an SSOC unless this procedural right is waived in writing by the appellant. 38 C.F.R. §§ 19.37, 20.1304 (2010). In this case, the appellant has not waived that right. To the contrary, in an April 2010 letter attached to the newly submitted evidence, her representative requested that her claims be granted or, alternatively, a new SSOC be issued, based on the newly submitted evidence. Thus, these issues must be readjudicated in an SSOC. The Board also finds that, prior to readjudication of these claims, additional development is required. The claims file currently includes records from the VA Medical Center (VAMC) in Charleston, South Carolina, dated through January 26, 2010, to include a May 2008 record referencing X-rays of the lumbosacral spine performed by a fee basis contractor that same month (the report of which was scanned, but is not of record). The Board emphasizes that records generated by or on behalf of VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO should obtain from the above-noted facility all outstanding records of VA evaluation and/or treatment of the Veteran's lumbar disc disease, to include the scanned report of the fee basis X-rays of the lumbosacral spine reportedly performed in May 2008, and any records dated after January 26, 2010. The RO should follow the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. Further, to ensure that all due process requirements are met, the RO should also give the Veteran another opportunity to provide information and/or evidence pertinent to the claims on appeal. The RO's letter to the Veteran should explain that she has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2010) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2010). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2010); 38 C.F.R. § 3.159 (2010). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims on appeal. As indicated, the RO's adjudication of these claims must include consideration of all pertinent evidence added to the claims file since the RO's last adjudication of each claim. Accordingly, these matters are hereby REMANDED to the RO, via the AMC, for the following action: 1. The RO should obtain from the Charleston VAMC all outstanding pertinent records of evaluation and/or treatment of the Veteran's lumbar spine, to include the scanned report of the fee basis X-rays of the lumbosacral spine reportedly performed in May 2008, and any records dated after January 26, 2010. The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. The RO should furnish to the Veteran and her attorney a letter requesting that the Veteran provide information and, if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claims on appeal that is not currently of record. The RO should clearly explain to the Veteran that she has a full one-year period to respond (although VA may decide the claims within the one-year period). 3. If the Veteran responds, the RO should assist her in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the Veteran and her representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. To help avoid future remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 5. After completing the requested actions, and any additional notification and/or development deemed warranted (to include another examination, if necessary), the RO should readjudicate the claims on appeal in light of all evidence (to particularly include all that added to the claims file since the RO's last adjudication of these claims) and legal authority. 6. If any benefit sought on appeal remains denied, the RO must furnish to the Veteran and her attorney an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication, and it is not the Board's intent to imply whether the benefits requested should be granted or denied. The appellant need take no action until otherwise notified, but she may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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. 2010). The RO is reminded that this appeal has been advanced on the Board's docket. _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2010).