Citation Nr: 1320809 Decision Date: 06/27/13 Archive Date: 07/05/13 DOCKET NO. 09-33 542 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to an evaluation in excess of 10 percent prior to March 20, 2012, and in excess of 40 percent from that date for right lumbar radiculopathy. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD N. J. Nardone, Associate Counsel INTRODUCTION The Veteran served on active duty for training from October 1990 to March 1991 and on active duty from March 1998 to December 1999. This case comes before the Board of Veterans' Appeals (Board) on appeal of a November 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. On his September 2009 substantive appeal, the Veteran indicated that he desired a "hearing ASAP." However, in December 2009, the Veteran withdrew his request for a hearing. When this appeal was previously before the Board in February 2012, the Board remanded the claim for entitlement to an increased rating for right lumbar radiculopathy and a claim for entitlement to service connection for psychiatric disability for additional development. In a January 2013 rating decision, the Appeals Management Center (AMC) granted entitlement to service connection for depressive disorder not otherwise specified and increased the schedular rating for the Veteran's right lumbar radiculopathy to 40 percent, effective March 20, 2012. This did not satisfy the Veteran's appeal with regard to the issue of entitlement to an increased rating for right lumbar radiculopathy. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (when a veteran is not granted the maximum benefit allowable under the VA Schedule for Rating Disabilities, the pending appeal as to that issue is not abrogated). The Board notes that, in addition to the paper claims files, there is a Virtual VA electronic claims file associated with the Veteran's claim. REMAND In the February 2012 remand, the Board noted that historically, in a February 2007 rating decision, the Veteran was granted service connection for right lumbar radiculopathy with an evaluation of 10 percent, effective November 17, 2006. The Veteran submitted the instant claim for entitlement to an increased rating for right lumbar radiculopathy in May 2008. As noted above, in a January 2013 rating decision, the AMC increased the schedular rating for the Veteran's right lumbar radiculopathy to 40 percent, effective March 20, 2012. The Board observed in February 2012 that according to a January 2011 VA examination report, the Veteran stated that he has to come to VA regularly for treatment due to acute low back pain. The Board noted that the most recent VA treatment records associated with the evidence of record were from April 2009. Therefore, the Board concluded that remand to obtain any outstanding, pertinent VA treatment records was in order. The Board directed that the RO or the AMC should undertake appropriate development to obtain any outstanding medical records pertaining to treatment or examination of the Veteran's right lumbar radiculopathy during the period of this claim, to specifically include any VA medical records. The Board instructed that then, the RO or AMC was to readjudicate the issue on appeal. If the benefits sought on appeal were not granted to the Veteran's satisfaction, a Supplemental Statement of the Case (SSOC) was to be issued to the Veteran and his representative. Subsequent to the February 2012 remand, the AMC obtained and associated with the Veteran's Virtual VA electronic claims file additional VA treatment records dated from May 2009 to December 2012. However, the January 2013 SSOC indicates that only VA treatment records dated in 2012 were considered by the AMC when readjudicating the issue on appeal. The Board notes that the Veteran's Virtual VA electronic claims file contains a voluminous amount of recently associated VA treatment records dated from 2009 to 2012 which are pertinent to the Veteran's appeal. The AMC failed to consider these records. While the Veteran, through his representative, in January 2013 provided a waiver of his right to have the case remanded to the originating agency for consideration of additional evidence submitted after that date, he has not waived consideration of the voluminous amount of VA treatment records dated from 2009 to 2012 which are pertinent to the appeal. Further, AMC compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. See Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the appeal must again be remanded for compliance with the Board's February 2012 remand directives. Accordingly, this case is REMANDED to the RO or the AMC, in Washington, D.C., for the following actions: 1. The RO or the AMC should undertake any indicated development. 2. Then, the RO or the AMC should again review the record and re-adjudicate the claim, to include consideration of any evidence associated with the Veteran's claims files or the Virtual VA electronic claims file which has not previously been considered by the RO or the AMC. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a supplemental statement of the case and given the requisite opportunity to respond thereto. Thereafter, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran unless he is otherwise notified but he has the right to submit additional evidence and argument on the matter the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This case 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). _________________________________________________ Shane A. Durkin 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).