Citation Nr: 1320359 Decision Date: 06/25/13 Archive Date: 07/05/13 DOCKET NO. 07-09 832 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to a rating in excess of 60 percent for degenerative disc disease of the lumbar spine with right lower extremity neuropathy. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Holtz, Associate Counsel INTRODUCTION The Veteran served on active duty for over 30 years prior to his retirement in August 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The issues of entitlement to separate compensable ratings for scars, secondary to spine and kidney surgeries; chronic constipation caused by pain medication; and chronic urinary tract infections secondary to a spine disorder have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). In this regard, the Board acknowledges that, without granting service connection, the RO considered a compensable rating for scars related to spine surgery in the August 2011 Supplemental Statement of the Case in violation of 38 C.F.R. § 19.31 (2012) ("In no case will a supplemental statement of the case be used to announce decisions by the agency of original jurisdiction on issues not previously addressed in the statement of the case.") Hence, the AOJ must determine whether a separate award of service connection is warranted for the scars, as the Veteran has raised this claim. Therefore, the Board does not have jurisdiction over these issues, and they are 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 This appeal is remanded for purposes of allowing the RO/AMC to adjudicate the issue of whether a separate rating is warranted for the neurological diagnoses related to the service-connected degenerative disc disease. In July 2005, the RO granted an increased, 60 percent rating for the Veteran's spine disability. The rationale for that rating is unclear, considering the criteria applied under 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012), but the rating appears to be based on findings of "failed back syndrome status post eight surgeries, with significant difficulty controlling pain," "very limited range of motion with severe pain in [the] lumbar spine," and that the Veteran stayed in bed two-to-three days per week due to back pain (based on his reports, rather than evidence of a physician's prescription). It is evident that the RO failed to address whether separate ratings were warranted for radiculopathy caused by the Veteran's degenerative disc disease of the lumbar spine, and if so, whether a rating higher than 60 percent disabling would be warranted. Per the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), objective neurologic abnormalities associated with spine disorders warrant separate ratings under appropriate diagnostic codes. See 38 C.F.R. § 4.71a, General Rating Formula, Note (1) (2012). Although the Veteran has been diagnosed with radiculopathy since at least 2008, at no point has the RO adjudicated entitlement to separate ratings for that disability. The Board is not the proper tribunal to consider that issue in the first instance. See 38 U.S.C.A. § 7104 (West 2002). Prior to adjudicating the remanded issue, to include whether separate ratings are warranted for neurological abnormalities related to the service-connected degenerative disc disease, the RO/AMC must provide the Veteran with notice compliant with the Veterans Claims Assistance Act of 2000 (VCAA), in order to permit the Veteran the ability to fully participate in his claim. Accordingly, the case is REMANDED for the following action: (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. Fully develop the issue of whether separate ratings are warranted for the objective neurological abnormalities associated with degenerative disc disease of the lumbar spine, to include providing proper VCAA notice to the Veteran. 2. Then, readjudicate the claim, to include consideration of whether separate ratings for objective neurological abnormalities associated with degenerative disc disease of the lumbar spine are warranted. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and the representative should be furnished a supplemental statement of the case and provided an appropriate opportunity to respond before the claims folder is returned to the Board for further appellate action. 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). _________________________________________________ DEREK R. BROWN 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).