Citation Nr: 1302183	
Decision Date: 01/18/13    Archive Date: 01/23/13

DOCKET NO.  10-01 919	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to a higher initial rating for a low back strain, currently rated as 10 percent disabling.


REPRESENTATION

Appellant represented by:	Florida Department of Veterans Affairs


ATTORNEY FOR THE BOARD

Bridgid D. Cleary, Counsel


INTRODUCTION

The Veteran served on active duty from March 1986 to February 1989.

This matter has come before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the St. Petersburg, Florida, Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for low back strain and awarded a 10 percent evaluation, effective October 8, 2008, and denied service connection for diabetes mellitus, type II.  The Veteran perfected an appeal with regard to the low back strain claim, but withdrew his claim of service connection for diabetes mellitus in a November 2009 statement, prior to the issuance of the Statement of the Case.  Moreover, the Veteran only appealed the low back strain issue in his December 2009 VA Form 9 (substantive appeal).  As such, only the low back strain issue remains on appeal, as reflected on the title page.

The Veteran was scheduled to testify at a Travel Board hearing before a Veterans Law Judge on July 12, 2011.  In a May 2011 statement, he withdrew that request.

In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim.  This paperless file contains additional relevant documents, including VA treatment records, which have been reviewed in conjunction with this claim.

The appeal is REMANDED to the Department of Veterans Affairs Regional Office in St. Petersburg, Florida.  VA will notify the appellant if further action is required.


REMAND

In January 2012, the Board remanded this case so that the Veteran's representative could submit a more comprehensive VA Form 1-646.

The Board notes that due to administrative error, another remand is necessary.  Specifically, the Board notes that the prior remand mistakenly sent the claims folder to the Appeals Management Center (AMC), in Washington, DC, instead of the local RO.  The purpose of that remand was to allow the Veteran's representative, the Florida Department of Veterans Affairs, access to the claims folder so that they could review that file and provide a detailed VA Form 1-646.  Unfortunately, the claims folder never left Washington.  Instead, the Veteran and his representative were sent a letter requesting a VA Form 1-646.

In order to allow the Veteran's representative access to the claims folder so that they may better represent him, this case is again remanded.  This time to the St. Petersburg RO.

Accordingly, the case is REMANDED to the RO for the following action:

1.  The claims folder should be forwarded to the Veteran's representative and the Veteran and his representative should be given an opportunity to submit a comprehensive VA Form 1-646.  

2.  After completion of the above, the RO should review the expanded record and determine if the benefits sought can be granted. If the claim remains denied, then the RO should furnish the Veteran and his representative with a supplemental statement of the case, and afford a reasonable opportunity for response before returning the record to the Board for further review.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).



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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. 2012).



_________________________________________________
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) (2012).