Citation Nr: 1318973 Decision Date: 06/11/13 Archive Date: 06/21/13 DOCKET NO. 08-36 948A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to compensation under the provisions of 38 U.S.C.A § 1151 for left lower extremity radiculopathy. 2. Entitlement to compensation under the provisions of 38 U.S.C.A § 1151 for right lower extremity radiculopathy. 3. Entitlement an initial rating in excess of 40 percent for right C5-6 radiculopathy. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Lipstein INTRODUCTION The appellant is a Veteran who served on active duty from January 1946 to December 1947. This case is before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Houston, Texas Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the Veteran's claim in November 2012. The Veteran testified at a hearing before the undersigned Veterans Law Judge in January 2013. A transcript of those proceedings has been associated with the Veteran's claims file. The issue of entitlement to compensation for a left hip disability has been raised by the record in September 2012, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 In connection with the Veteran's claim for benefits under 38 U.S.C.A. § 1151, in January 2011, he completed a VA Form 21-4142, Authorization and Consent to Release Information, in order to obtain private treatment records from Eden Hill Nursing Home in New Braunfels, Texas. The Veteran stated that he received therapy and was unable to walk or climb stairs. The claims file does not contain records of the Veteran's treatment at Eden Hill Nursing Home and there is no indication that a request for these records was made by the RO. They should be sought. In a March 2012 VA Form 9, the Veteran identified a specific physician who he said told him that the left and right lower extremity radiculopathy is related to the September 2008 lumbar decompression surgery. From the context, this appears to refer to a VA physician, but this should be clarified and this person's records sought. The Veteran's claim for compensation under 38 U.S.C.A. § 1151 arises from a . September 2008 surgery. It does not appear that the current record includes the full informed consent document. VA treatment records reflect that the full informed consent document for this procedure can be accessed through "Vista Imaging." The full consent document for this procedure should be requested. Since the adjudication of the Veteran's compensation claims could greatly affect his claim for TDIU benefits, a decision on the TDIU claim is deferred. Under the circumstances described above, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO should notify the Veteran that he may submit lay statements from individuals who have first-hand knowledge, and/or were contemporaneously informed of the nature, extent and severity of his C5-6 radiculopathy, and left and right lower extremity radiculopathy symptoms and the impact of the C5-6 radiculopathy condition on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 2. With any necessary assistance from the Veteran attempt to obtain any records of the care he received at the Eden Hill Nursing Home, in New Braunfels, Texas. Additionally, ask the Veteran to provide the names and addresses of all health care providers who have treated him for the disabilities at issue since April 2010. After securing any necessary authorization, request any relevant records identified. 3. Obtain a copy of the full informed consent document for the September 2008 back surgery which the record reflects can be accessed through "Vista Imaging." If the RO is unable to obtain the full informed consent document for the September 2008 back surgery, an explanation as to why it could not be obtained should be provided. 4. Ask the Veteran to clarify the name and address of the physician he referred to in his March 2012 VA Form 9, who reportedly told him his claimed lower extremity disabilities were related to his 2008 surgery. The records in this regard, from this person should be sought. 5. After undertaking any additional development as may become indicated upon review of this evidence, readjudicate the claims. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided a supplemental statement of the case. This should identify all the evidence considered. After an opportunity to respond has been provided the Veteran and his representative, the case should be returned to the Board. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ MICHAEL E. KILCOYNE 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).