Citation Nr: 1311615 Decision Date: 04/08/13 Archive Date: 04/19/13 DOCKET NO. 07-18 122 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to an initial rating in excess of 10 percent for residuals of compression fracture of the thoracic spine with retained foreign bodies prior to July 12, 2005, and an initial rating in excess of 20 percent from that date. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. T. Sprague, Counsel INTRODUCTION The Veteran served on active duty from August 1994 to September 1996. This matter comes to the Board of Veteran's Appeals (Board) on appeal from a September 2006 decision of the RO in Philadelphia, Pennsylvania, which granted service connection for residuals of compression fracture of the thoracic spine with retained foreign bodies and awarded a 10 percent rating effective in May 2003. The Veteran disagreed with the initial rating, and during the course of the appeal, the RO awarded an increased rating, to 20 percent, effective July 12, 2005 in a May 2009 rating decision. The Veteran continued his appeal. The Veteran testified before a Veterans Law Judge at a hearing held at the RO in November 2009. That judge later left the Board. The Veteran was offered an opportunity to testify before another Veterans Law Judge and did so in March 2012. The Board remanded this case for additional development in January 2010, in February 2012 to provide the Veteran another hearing before the Board, and in June 2012 for remedial compliance and additional evidentiary development. The case returns now for appellate consideration. 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 This case has been before the Board on several occasions, and most recently, was remanded in June 2012 for the affording of a VA examination, obtainment of VA records, and the re-adjudication of the claim under legal criteria in effect prior to September 2003. It appears that some VA treatment records were obtained and associated with the claims file, and a comprehensive VA examination was afforded. The directed adjudicative actions, and the obtainment of all records from May 2003 to the present did not, however, occur. The Board, in its June 2012 remand order, noted that the date of the award of service connection for the Veteran's spinal injury was in May 2003. There was a significant revision of the regulatory criteria applicable to spinal injuries on September 26, 2003. In Bernard v. Brown, 4 Vet. App. 384, 393 (1993), the U.S. Court of Appeals for Veterans Claims (Court) held that, when the Board addresses a question that has not been addressed by the RO, it must consider whether the claimant has been given adequate notice of the need to submit evidence or argument on that question and an opportunity to submit such evidence and argument and to address that question at a hearing and, if not, whether the claimant has been prejudiced thereby. The Board, in the June 2012 remand, noted that the RO had not considered the pre-September 2003 rating criteria when rating the Veteran, and noted that such an action could potentially be prejudicial to the Veteran. It was specifically instructed that the Appeals Management Center (AMC) consider the older rating criteria in the first instance so that any prejudice could be avoided (i.e. that the Board would not adjudicate the claim under the older criteria without the Veteran being aware, in the first instance, of what those criteria are). This does not appear to have occurred. Indeed, in the issuance of the supplemental statement of the case (SSOC) by the AMC, only current regulations appear to have been discussed. While there was no specific cite to the diagnostic criteria applicable for rating back disorders, it is apparent that the AMC only considered limitation of motion of the thoracolumbar spine as considered in the current General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). See 38 C.F.R. § 4.71a (2012). No mention was made of pre-September 2003 criteria, and as such, the AMC did not fully comply with the Board remand instructions. It is unfortunate that this case must again be remanded; however, as it is in the best interest of the Veteran that his case be considered without him being prejudiced, such a remedial action is necessary. Veterans, as a matter of law, are entitled to compliance with Board instructions. See Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the AMC must consider both current and pre-September 2003 rating criteria, must explain what is required to warrant a higher initial rating under that criteria, and must explain what applicable criteria was utilized while re-adjudicating the claim for a higher initial rating. Additionally, the Board notes that the June 2012 remand order specifically requested that all VA records from May 2003 to the present be located and associated with the claims file. A search of the electronic Virtual VA system indicates that records were obtained from September 2007 to June 2012. There was no finding of unavailability of records from May 2003 to September 2007, and this was specifically directed by the Board should a search of the VA records from May 2003 to the present be unproductive. Thus, in addition to the noncompliance with regard to consideration of pre-September 2003 rating criteria, it is also apparent that the AMC did not fully comply with instructions to obtain all outstanding VA records (or, in the alternative, determine that such records were not available). This is also a violation of jurisprudential precedent, and remedial action is necessary. See Stegall at 268. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's VA treatment records from May 2003 to September 2007, and from June 2012 to the present. Should no records be available after an exhaustive search, so annotate the record with a finding of unavailability. 2. Re-adjudicate the claim on the merits. The RO must address the Veteran's claim under both the present regulations governing spinal disabilities and those in effect prior to September 26, 2003. In the benefits sought on appeal are not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an 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).