Citation Nr: 1310445	
Decision Date: 03/29/13    Archive Date: 04/09/13

DOCKET NO.  07-21 189	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia


THE ISSUE

Entitlement to service connection for a cervical spine disorder, to include as secondary to burst compression fracture of L1, status post spinal fusion of T12-L2 with Harrington Rod placement at T11-L3, and with height loss and anterior wedging of L1 vertebral body.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

J.A. Flynn, Associate Counsel



INTRODUCTION

The Veteran served on active duty in the United States Army from December 1992 to February 1998.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, which denied the Veteran's claim of entitlement to service connection for a cervical spine disorder, to include as secondary to his thoracic and lumbar spine disorders.  

In June 2007, the Veteran requested the opportunity to testify at a personal hearing before a Decision Review Officer at the Huntington RO, and in August 2007, was notified that a hearing had been scheduled for September 17, 2007.  However, the Veteran failed to show up for the scheduled hearing.  Therefore, his hearing request is deemed withdrawn.  See 38 C.F.R. §§ 20.702(d), 20.704(d) (2012).

The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C.  VA will notify the Veteran if further action is required on his part.


REMAND

Unfortunately, a remand of the Veteran's claim for service connection is again warranted.  Although the Board regrets the additional delay associated with an additional remand, further development of the record is required before the Board may render a decision in the instant case.  When the Board's remand requests are not satisfied, the Board errs as a matter of law when it fails to ensure compliance.  See Stegall v. West, 11 Vet. App. 268 (1998).

In December 2010, the Board remanded the Veteran's claim in order both to obtain additional medical records and to provide the Veteran with an additional VA examination.  Additional medical records were obtained, and the Veteran failed to report for a scheduled VA examination.  While the Board finds that there has been adequate compliance with these directives, the Board's third remand directive stated the following:

3.  The claims should be readjudicated.  If any benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be provided with a Supplemental Statement of the Claim and afforded the opportunity to respond thereto.  The matter should then be returned to the Board, if in order, for further appellate review.

Following the above development, the AMC erroneously issued a supplemental statement of the case (SSOC) as to the issue of an increased rating for a thoracic/lumbar spine disability, which is not currently on appeal.  The AMC did not issue an SSOC as to the issue that is indeed on appeal, that is, entitlement to service connection for a cervical spine disorder.  On remand, an SSOC must be issued as to the correct issue on appeal.

Accordingly, the case is REMANDED for the following action:

Readjudicate the Veteran's claim of entitlement to service connection for a cervical spine disorder, to include as secondary to burst compression fracture of L1, status post spinal fusion of T12-L2 with Harrington Rod placement at T11-L3, and with height loss and anterior wedging of L1 vertebral body.  If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be provided with an SSOC and afforded the opportunity to respond thereto.  The matter should then be returned to the Board, if in order, for further appellate review.

The Veteran has the right to submit additional evidence and argument on the matter that the Board has remanded.  See 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 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 2002 & Supp. 2012).



_________________________________________________
BARBARA B. COPELAND
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.  See 38 C.F.R. § 20.1100(b) (2012).