Citation Nr: 1307451 Decision Date: 03/05/13 Archive Date: 03/11/13 DOCKET NO. 07-17 553 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to a disability rating greater than 40 percent for service-connected degenerative disc disease with spondylolisthesis. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The Veteran had active service from August 1974 to June 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in North Little Rock, Arkansas, that, in pertinent part, continued and confirmed a 40 percent disability rating for degenerative disc disease with spondylolisthesis. In March 2008, the Veteran testified at a video conference hearing over which the undersigned Veterans Law Judge presided. A transcript of that hearing has been associated with his claims file. This matter was previously before the Board in November 2009 at which time it was remanded for additional development. In June 2011, the Board denied the issue of an increased disability rating for the service-connected degenerative disc disease with spondylolisthesis. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In January 2012, a Joint Motion for Partial Remand (Joint Motion) was brought before the Court. In an Order dated that same month, the Court vacated that portion of the June 2011 Board decision that denied an increased disability rating for the service-connected degenerative disc disease with spondylolisthesis and remanded the case to the Board for readjudication consistent with its Order. The case is now returned to the Board. The Board notes that the issues of entitlement to a disability rating greater than 10 percent for left knee bursitis and to a TDIU were also before the Board in June 2011, however, the issues were remanded for additional development. The requested development has not yet been completed by the agency of original jurisdiction, therefore, the Board will not address those issues until such development has been completed provided that the complete benefit sought on appeal is not granted. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. The appeal is REMANDED to the RO. VA will notify the appellant if further action is required. REMAND According to the January 2012 Joint Motion, in its June 2011 decision, the Board did not provide an adequate statement of reasons or bases fully addressing the relevant evidence of record, to specifically include a December 2009 VA examination report, in adjudicating whether he is entitled to have the issue referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination as to whether his disability picture requires the assignment of an extra-schedular disability rating. A VA examination was conducted in July 2011, and the report associated with the Veteran's claims file. The findings of this report, also provide medical evidence which is relevant in adjudicating his claim of entitlement to an increased disability rating for the service-connected degenerative disc disease with spondylolisthesis. This additional evidence, however, was received by the Board following the now-vacated July 2011 decision, and has not been considered by the agency of original jurisdiction as it pertains to the issue of an increased disability rating for the low back disability. Moreover, neither the Veteran nor his representative has provided a waiver of initial consideration by the agency of original jurisdiction of this evidence prior to submission to the Board. See Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003) (absent a waiver, the Board may not adjudicate a claim based on evidence which has not been previously considered by the agency of original jurisdiction); 38 C.F.R. §§ 19.37, 20.1304. Since this evidence is neither duplicative of other evidence already of record nor irrelevant, it must be referred back to the agency of original jurisdiction for initial consideration. 38 C.F.R. §§ 19.37 , 20.1304. The need for further examination of the Veteran as to this issue is left to the discretion of the agency of original jurisdiction following review of the evidence of record. Finally, as this matter is being remanded for the reasons set forth above, any additional VA treatment records of the Veteran for his low back disorder should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. The RO shall contact the appropriate VA medical facilities and attempt to obtain medical treatment records pertaining to the Veteran that are not yet associated with his claims file for treatment of his low back disability. All records obtained must be associated with his claims file. 2. The RO shall readjudicate the Veteran's claim of entitlement to a disability rating greater than 40 percent for service-connected degenerative disc disease with spondylolisthesis in light of the additional VA examination report dated in July 2011. In readjudicating the Veteran's claim, all additional evidence submitted since the February 2011 Supplemental Statement of the Case concerning this claim must be addressed. The decision whether the claim should be referred to the Director of Compensation and Pension Service for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b) (2012) is left to the discretion of the agency of original jurisdiction following its review of the evidence. If the benefit sought on appeal is not granted, the Veteran and his representative must be provided with a Supplemental Statement of the Case and given an opportunity to respond before returning the claims file to the Board for further appellate review. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. The Veteran need take no action until he is so informed. He 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). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. 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). _________________________________________________ THOMAS J. DANNAHER 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).