Citation Nr: 1315941 Decision Date: 05/15/13 Archive Date: 05/15/13 DOCKET NO. 07-29 280 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for the service-connected lumbar strain with degenerative disc disease. 2. Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L.B. Cryan, Counsel INTRODUCTION The Veteran had active military service from July 1966 to July 1968 and August 1969 to August 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in May 2005 and May 2006 by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. Service connection for low back strain was originally awarded in a December 1981 rating decision and evaluated as zero percent disabling at that time. The Veteran filed a claim for an increased disability rating in October 2004. By rating decision issued in May 2005, an increased rating to 10 percent was awarded for lumbar strain with degenerative disc disease effective April 12, 2004. Additional evidence was added to the record within a year of the April 2004 rating decision, and as such, the RO issued a subsequent rating decision in May 2006 confirming and continuing the previously assigned 10 percent rating. The Veteran disagreed with the assignment of a 10 percent disability rating and perfected an appeal to the Board. Subsequently, in an August 2008 rating decision issued during the pendency of the appeal, the RO assigned an increased disability rating of 20 percent, for the service-connected lumbar strain with degenerative disc disease, effective June 16, 2008. This resulted in a staged rating for the Veteran's service-connected low back disability. In December 2010, the Veteran testified at a travel board hearing at the RO before a Veterans Law Judge who has since retired from the Board. A copy of the hearing transcript is of record. In a March 2011 decision, the Board found that the criteria for the assignment of a 20 percent disability rating for the service-connected lumbar strain with degenerative disc disease had been met prior to the June 16, 2008 effective date assigned by the RO. In an April 2011 rating decision, the RO assigned an earlier effective date of October 25, 2004 for the assignment of the 20 percent rating for the service-connected lumbar strain with degenerative disc disease. The Board also denied a claim for a TDIU and granted an initial compensable disability rating of 10 percent for the service-connected meralgia paresthetica of the left lower extremity. The Veteran appealed the Board's March 2011 decision to the United States Court of Appeals for Veterans Claims (CAVC or Court). In July 2012, the Court issued a decision that vacated the Board's March 2011 decision insofar as it denied a disability rating in excess of 20 percent for the service-connected lumbar strain with degenerative disc disease, and denied a TDIU. Those matters were remanded to the Board for further proceedings consistent with the Court's July 2012 decision. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND Pursuant to 38 U.S.C.A. § 7107(c); 38 C.F.R. §§ 20.700 (2012), a hearing on appeal will be granted to an appellant who requests a hearing and is willing to appear in person. The Veteran is entitled to a hearing before a Veterans Law Judge (VLJ) who will decide the appeal. 38 U.S.C.A. § 7107(c) (West 2002); 38 C.F.R. § 20.707 (2012). In this case, the Veteran did appear for a personal hearing before a Veterans Law Judge in December 2010; however that VLJ has since retired and is no longer employed at the Board. The Veteran is therefore entitled to another hearing before a Veterans Law Judge, either in person, or via video conference if he so chooses. 38 U.S.C.A. § 7107(b) (West 2002); 38 C.F.R. § 20.700 (2012). In a hearing clarification letter, received at the Board in April 2013, the Veteran requested to appear for another in-person hearing before a VLJ held at the RO. In light of the Veteran's request for another Board hearing, the case is REMANDED for the following action: Schedule the Veteran for a travel Board hearing at the RO. Notify the Veteran and his representative of the date, time and place of the hearing. After the hearing is conducted, or in the event the Veteran withdraws his hearing request or fails to report for the hearing, the claims file should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter 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). _________________________________________________ S. S. TOTH 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).