Citation Nr: 1120141 Decision Date: 05/24/11 Archive Date: 06/06/11 DOCKET NO. 06-14 501 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to an increased rating for lumbar spine spondylosis, currently rated as 20 percent disabling. 2. Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The Veteran served on active duty from March 1972 to January 1974. The matter concerning entitlement to an increased rating for the Veteran's service-connected lumbar spine spondylosis comes before the Board of Veterans' Appeals (Board) from an April 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In this rating decision, the RO granted an increased rating of 20 percent for the Veteran's lumbar spine spondylosis. The matter concerning entitlement to TDIU benefits was raised by the record in October 2009, when the Veteran provided testimony as to the issue in the course of a hearing conducted by the undersigned Veterans Law Judge in Washington, DC. See Rice v. Shinseki, 22 Vet. App. 447 (2009). A transcript of this hearing is in the Veteran's claims folder. The Board thereafter denied the claim seeking a rating in excess of 20 percent for the service-connected lumbar spine spondylosis in a December 2009 decision. At that same time, the issue of entitlement to TDIU was remanded for further development. A supplemental statement of the case (SSOC) was thereafter mailed to the Veteran in January 2011, which informed him that his TDIU claim had been denied. The SSOC is shown to have been issued by the RO in Huntington, West Virginia. The Board notes, however, that a December 2010 VA Form 21-0820, Report of General Information, shows that the Veteran informed VA that he resided in Florida. He also supplied a mailing address in Florida to VA via facsimile in February 2011. The Veteran appealed the part of the Board's December 2009 decision (entitlement to increased ratings for radiculopathy of the right and left lower extremities were also denied by the Board in December 2009) which denied his increased rating claim for his service-connected lumbar spine spondylosis to the United States Court of Appeals for Veterans Claims (Court), and in a June 2010 Order, the Court vacated and remanded the matter to the Board for development consistent with the parties' June 2010 Joint Motion for Remand (Joint Motion). Also in December 2009, the Board noted that the Veteran had seemed to raise an issue of entitlement to service connection for arthritis, as relating to his lumbar spine. The Board found that the claim had not yet been adjudicated by the RO, and referred it to the RO for appropriate action. Such action is not yet shown to have taken place. As such, the issue of entitlement to service connection for arthritis being referred has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 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 As noted above in the INTRODUCTION, the Veteran's claim seeking a rating in excess of 20 percent for his service-connected lumbar spine spondylosis was the subject of a June 2010 Court Order, and the matter was remanded for compliance with the instructions of the June 2010 Joint Motion. On February 28, 2011, the Board mailed a letter to the Veteran's attorney, informing him that the Court in June 2010 had remanded the matter back to the Board for readjudication and the issuance of a new decision. As part of a March 2011 letter, the Veteran's attorney, in response to the Board's February 28, 2011 letter, requested that a video conference hearing with a Veterans Law Judge be scheduled. The Board also notes that following the issuance of a January 3, 2011, SSOC to the Veteran, which informed him that his TDIU claim had been denied, the Veteran's attorney, as part of a January 2011 letter (which was in direct response to the January 4, 2011 SSOC) requested that the Veteran be afforded a Board video hearing. While the Board is mindful that the Veteran was afforded a hearing conducted in Washington, DC in October 2009, which was conducted by the undersigned Veterans Law Judge, the Board finds noteworthy that the Veteran's current attorney who requested the video conference hearing began representing the Veteran in January 2011. See VA Form 21-22a, Appointment of Individual as Claimant's Representative. In light of the January and March 2011 requests, the Board will remand the case to afford the Veteran his requested Board video conference hearing. 38 C.F.R. §§ 20.700(a),(e), 20.703, 20.1304(a) (2010). Accordingly, this case is REMANDED to the RO for the following action: The RO should take all indicated action to schedule the Veteran for a video conference hearing with a Veterans Law Judge in an expeditious manner. The Veteran should be notified of the date and time of the hearing. All appropriate development should be taken in this regard. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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). _________________________________________________ KATHLEEN K. GALLAGHER 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) (2010).