Citation Nr: 1320791 Decision Date: 06/27/13 Archive Date: 07/05/13 DOCKET NO. 13-10 106 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to an increased rating for lumbar spine strain with degenerative disc disease and L5 pars defect, currently rated 40 percent disabling. 2. Entitlement to an initial increased rating for radiculopathy, right lower extremity, currently rated 20 percent disabling. 3. Entitlement to an initial increased rating for radiculopathy, left lower extremity, currently rated 10 percent disabling. REPRESENTATION Veteran represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from September 1989 to April 1996. This matter comes to the Board of Veterans' Appeals (Board) from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In a January 2012 rating decision, the RO recharacterized the service-connected lumbar spine strain with degenerative disc disease as lumbar spine strain with degenerative disc disease and L5 pars defect and continued the 20 percent disability rating already in effect. A notice of disagreement was filed in September 2012 with regard to the disability rating assigned. In a March 2013 rating decision, the RO assigned a 40 percent disability rating to the lumbar spine disability, effective January 24, 2013. Although an increased rating was granted, the issue remained in appellate status, as the maximum schedular rating had not been assigned and it was not assigned during the entire appeal period. AB v. Brown, 6 Vet. App. 35 (1993). A statement of the case was issued in March 2013 and a substantive appeal was received that same month. In a May 2013 rating decision (contained in Virtual VA), the RO assigned a separate 20 percent rating to radiculopathy, right lower extremity, and a separate 10 percent rating to radiculopathy, left lower extremity. The RO deferred decisions on entitlement to service connection for depression, headaches, and hypertension; entitlement to special monthly compensation (SMC) as a result of loss of creative organ; entitlement to SMC on the basis of being housebound or being in need of aid and attendance by another person; and, entitlement to a total disability rating due to individual unemployability (TDIU), as a result of service-connected disabilities. 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 Veteran if further action is required. REMAND In the March 2013 rating decision and statement of the case, the RO cited to treatment records from the New Orleans VA Medical Center (VAMC) dated from July 11, 2011 through February 26, 2013, and in the May 2013 rating decision, the RO cited to treatment records from the Southeast Louisiana VAMC dated from October 15, 2010 through May 17, 2013 . Unfortunately, these treatment records have not been associated with the claims folder or Virtual VA. The Board notes that the Veteran's increased rating claim was received on July 5, 2011. Thus, his VA treatment records dated from July 5, 2010 to the present should be associated with the claims folder or Virtual VA. Bell v. Derwinski, 2 Vet. App. 611 (1992). 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. Associate with the claims folder or Virtual VA the Veteran's treatment records from the New Orleans/Southeast Louisiana VAMCs for the period from July 5, 2010. 2. After completion of the above, the RO/AMC should review the expanded record and readjudicate the issues of entitlement to an increased rating for lumbar strain with degenerative disc disease and L5 pars defect and entitlement to initial increased ratings for radiculopathy, bilateral lower extremities. The RO/AMC should also ensure that the deferred issue of entitlement TDIU is adjudicated prior to recertification to the Board. If the benefits sought are not granted in full, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The Veteran and his representative have 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). _________________________________________________ ERIC S. LEBOFF 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).