Citation Nr: 1317174 Decision Date: 05/24/13 Archive Date: 05/31/13 DOCKET NO. 06-27 500 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial evaluation in excess of 20 percent prior to July 13, 2012, and an initial rating in excess of 40 percent from July 14, 2012, for degenerative disk disease of the low back. 2. Entitlement to an initial evaluation in excess of 10 percent for radiculopathy of the left lower extremity, secondary to degenerative disk disease of the low back. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. R. Fletcher, Counsel INTRODUCTION The Veteran had active service from June 2002 to October 2004. This matter comes before the Board of Veterans' Appeals (Board) from a September 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which, in pertinent part, granted service connection and an initial evaluation of 20 percent for degenerative disk disease of the low back. In June 2009, the Board (in pertinent part) denied an initial evaluation in excess of 20 percent for degenerative disk disease of the low back. The Veteran (in pertinent part) appealed that denial to the United States Court of Appeals for Veterans Claims (Court). In August 2010, the Court granted a Joint Motion for Partial Remand of the parties (Joint Motion), vacated (in pertinent part) the Board's decision with respect to the issue of a higher initial evaluation for degenerative disk disease of the low back, and remanded the case to the Board for action consistent with the Joint Motion. In February 2011 and May 2012 the Board (in pertinent part) remanded the initial rating issue for additional development. By rating decision in March 2012, the Veteran was awarded service connection for posttraumatic stress disorder (PTSD). The United States Court of Appeals for the Federal Circuit has held that the award of service connection for a particular disability constitutes a full award of benefits on the appeal initiated by a notice of disagreement on such issue. Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). Therefore, that matter is not before the Board. A December 2012 rating decision granted a 40 percent rating for degenerative disk disease of the low back, effective July 14, 2012. The Veteran continued his appeal. In March 2013, the RO issued a rating decision granting a separate evaluation of 10 percent for radiculopathy of the left lower extremity, secondary to degenerative disk disease of the low back, effective from November 21, 2012. See March 2013 rating decision in Virtual VA. This matter is on appeal as well. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Veteran has asserted that his back disability as well as various other conditions (PTSD, left knee disability) have resulted in unemployability. See April 2012 statement from the Veteran. The Court has held that a claim for a total disability rating based on individual unemployability (TDIU) can be inferred as part of the original claim for a higher initial rating in certain circumstances. Rice v. Shinseki, 22 Vet. App. 447 (2009) (per curium). This case differs, however. In pertinent part, Rice held that a TDIU claim is part of the increased rating claim on appeal to the Board where the TDIU claim is based solely upon the disability or disabilities which are the subject of the increased-rating claim. In this case, there are other service-connected disabilities which are not on appeal to the Board, so the Board lacks jurisdiction over the TDIU claim. Finally, the TDIU issue was not included in the arguments presented to the Board in February 2013. Therefore, in the factual and legal circumstances of this case, the Board declines to take jurisdiction over a TDIU claim, and the issue is referred to the RO for appropriate action. 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 once again is REMANDED to the RO via the AMC, in Washington, DC. VA will notify the Veteran if further action on his part is required. REMAND In May 2012 the Board remanded this case to obtain up-to-date treatment records and a VA examination. Review of the record shows that in a December 2012 rating decision, the RO granted a 40 percent rating for degenerative disk disease of the low back, effective July 14, 2012. See December 2012 rating decision and December 2012 Supplemental Statement of the Case. In a March 2013 rating decision, the RO granted a separate evaluation of 10 percent for radiculopathy of the left lower extremity, secondary to degenerative disk disease of the low back, effective from November 21, 2012. See March 2013 rating decision in Virtual VA. The March 2013 rating decision refers to VA treatment records dated from October 2009 to March 18, 2013; however, all these treatment records have not been associated with the claims files or Virtual VA. The most recent VA treatment record associated with the file is dated August 2011. VA records are considered part of the record on appeal since they are within VA's constructive possession, and such records may have bearing on the Veteran's claim. See Bell v. Derwinski, 2 Vet. App. 611 (1992). Therefore, on remand, these treatment records should be obtained and associated with the record. A remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board recognizes that this case was remanded previously and sincerely regrets the further delay. Notably, however, this case is on remand from the Court, and the Court has routinely returned to the Board for corrective action cases where development sought on remand was not completed. Accordingly, the case is REMANDED for the following action: 1. The RO or the AMC should obtain and associate with the claims files or Virtual VA the outstanding VA treatment records (dated from October 2009 to March 2013) referenced in the March 2013 rating decision, and any additional VA medical records that may have come into existence since March 2013. 2. Thereafter, the RO or the AMC should undertake any other development it determines to be warranted. 3. Then, the RO or the AMC should readjudicate the Veteran's claims. If the benefits sought on appeal are not granted to the Veteran's satisfaction, he and his representative should be provided a supplemental statement of the case and an appropriate period of time for response. The case should then be returned to the Board for further consideration, if otherwise in order. The appellant 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 Court 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). _________________________________________________ JONATHAN B. KRAMER 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).