Citation Nr: 1308709 Decision Date: 03/14/13 Archive Date: 03/25/13 DOCKET NO. 03-25 385 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an evaluation in excess of 20 percent disabling for a lumbar spine disability (back disability). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Amanda Christensen, Associate Counsel INTRODUCTION The Veteran had active military service from May 1966 to April 1970 and from November 1990 to June 1991. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a December 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In a July 2011 order, the United States Court of Appeals for Veterans Claims (Court) vacated the portion of the Board's decision that denied a disability rating in excess of 20 percent for a lumbar spine disability (back disability) and remanded the matter to the Board for compliance with the instructions in the opinion. The Board remanded the case to the RO for further development in March 2012. The case has since been returned to the Board for appellate review. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. 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 Despite the lengthy procedural history in this case, the claim must once again be remanded because the RO did not follow the Board's prior remand directive. The Board is obligated by law to ensure that the RO complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). In its March 2012 order, the Board remanded this case for the RO to obtain the Veteran's VA treatment records for treatment concerning the lumbar spine from April 2008 to present and to schedule the Veteran for a VA examination to determine the current nature and severity of his lumbar spine disability. The Veteran's VA treatment records have been added to the file and the Veteran was afforded a VA examination in March 2012. However, the RO did not readjudicate the Veteran's claim or issue a SSOC subsequent to receipt of the records and VA examination. Although the RO issued a rating decision in September 2012, that decision addressed only a subsequent claim the Veteran filed for an unrelated disability. The Board is therefore obligated to remand this case to afford the Veteran due process. In this regard, it is also important to note that the Veteran has been receiving individual unemployability from April 2, 2006. As the Veteran is thus already receiving 100 percent compensation, he is not eligible for additional compensation under the rating schedule (he cannot get higher than a 100% rating), regardless of whether he is granted an increased rating for his back disability. The Veteran, in consultation with his representative, may wish to consider withdrawing the claim. However, until then, the Board must fully address the concerns of the Veteran's Court in this case, notwithstanding the above. Accordingly, the case is REMANDED for the following action: Readjudicate the claim on the merits. The RO must consider the ratings provisions for the spine in effect prior to September 23, 2002; from September 23, 2002 to September 26, 2003; and from September 26, 2003 to the present. If the benefits sought are not granted, the Veteran and his representative should be furnished a SSOC and afforded a reasonable opportunity to respond before the record is returned 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). 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). _________________________________________________ JOHN J. CROWLEY 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).