Citation Nr: 1120373	
Decision Date: 05/25/11    Archive Date: 06/06/11

DOCKET NO.  10-43 421	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUE

Entitlement to service connection for muscle spasm down back of neck, spine, and shoulder areas.  


REPRESENTATION

Appellant represented by:	Georgia Department of Veterans Services


ATTORNEY FOR THE BOARD

A. Spector, Associate Counsel


INTRODUCTION

The Veteran served on active duty from May 1985 to July 1989.  

This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a September 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California.  The Board notes that, while the Veteran filed her claim with the RO in Atlanta, Georgia, the rating decision was issued by the San Diego, California RO.  Thereafter, the Veteran was sent an August 2010 statement of the case by the RO in Atlanta, Georgia. 

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

After a thorough review of the claims file, the Board has determined that additional evidentiary development is necessary prior to the adjudication of the Veteran's claim of service connection for muscle spasm down the back of the neck, spine, and shoulder areas.

Following the issuance of the Statements of the Case (SOC) in August 2010, the Veteran submitted additional evidence, to include private medical records, evidence of current diagnoses, and two CD's containing x-ray pictures of the lumbar and cervical spine.  Neither the Veteran nor her representative indicated that they wished to waive Agency of Original Jurisdiction (AOJ) consideration of this newly submitted evidence.  Without such waiver of AOJ consideration, the Board may not proceed to adjudicate the Veteran's claim.  Accordingly, the Veteran's claim must be remanded for the issuance of a SSOC.  See 38 C.F.R. § 20.1304 (2010).

The submission of new evidence brought to question which current disabilities are related to the issue on appeal.  Upon readjudication of the Veteran's claim, the AMC should consider the new evidence and determine if separate ratings are warranted, and if so, rate them accordingly.  

Accordingly, the case is REMANDED for the following action:

The AMC is requested to review all of the newly submitted evidence in the Veteran's claims file.  The AMC should determine if separate ratings are warranted, and if so, rate them accordingly.  Furthermore, if deemed necessary, the AMC should obtain an additional medical opinion.  If the determination remains unfavorable to the Veteran, the RO/AMC must issue a Supplemental Statement of the Case (SSOC) and provide the Veteran a reasonable period of time in which to respond before this case is returned to the Board.

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. 2010).



_________________________________________________
J. A. MARKEY 
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).