Citation Nr: 1301408	
Decision Date: 01/14/13    Archive Date: 01/23/13

DOCKET NO.  07-17 634	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUE

Entitlement to an increased rating for degenerative disc disease of the lumbar spine and status post fracture of the L-3 with vertebral body deformity, currently evaluated as 30 percent disabling.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

M. Young, Counsel


INTRODUCTION

The Veteran served on active duty from December 1959 to September 1962.

The Veteran's claim comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision of the Department of Veterans Affairs' (VA) Regional Office (RO) in Oakland, California, that denied the benefit sought on appeal.  

In his May 2007 substantive appeal (on VA Form 9), the Veteran requested a Travel Board hearing.  In a November 2008 statement, he indicated that he does not want a hearing.  Based upon this later document, the Board finds that the Veteran has withdrawn his earlier request for a hearing and will proceed with this appeal.  

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

In December 2011 the Board received additional evidence, including lay statements from the Veteran's wife and two neighbors, and copies of photographs.  While this additional evidence was received at the RO, it was not considered in a decision by the RO.  In December 2012 the Board notified the Veteran of his right to have the RO review the additional evidence prior to the Board's review of the evidence or he could waive the right by submitting a waiver in writing.  In correspondence dated in December 2012 the Veteran requested that his case be sent back to the RO for review of the additional evidence.

In addition, ongoing VA treatment records should be obtained.  In October 2011 correspondence the Veteran indicated that he had an MRI appointment scheduled in November 2011 at a VA Medical Center, such record has not been associated with the Veteran's claims file.  As VA medical records are in constructive possession of the agency, they must be obtained if the material could be determinative of the claim.  See Bell v. Derwinski, 2 Vet. App. 611 (1992).

Accordingly, the case is REMANDED for the following action:

1. Obtain treatment records from the VA Medical Center in Sacramento, California dating since June 2010 to specifically include the November 2011 MRI.  

2. The RO should review the evidence associated with the claims file since the September 2011 supplemental statement of the case (SSOC) and readjudicate the claim.  If the benefit sought is not fully granted the Veteran should be furnished an SSOC and be given the opportunity to respond.  The case should then be 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 for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



_________________________________________________
MICHAEL MARTIN
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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) (2012).