Citation Nr: 1322226 Decision Date: 07/11/13 Archive Date: 07/18/13 DOCKET NO. 09-36 885 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a low back disorder, including a herniated disc, as a residual of an injury. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD T. M. Gillett, Counsel INTRODUCTION The Appellant had active military service from February 26, 1980, to June 13, 1980, and reportedly additional service after that from 1980 to 1987 in the Army Reserves and National Guard. This appeal to the Board of Veterans' Appeals (Board) is from a December 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). As support for her claim, the Appellant testified at a videoconference hearing in April 2012 before the undersigned Veterans Law Judge of the Board. In July 2012 the Board remanded the claim to the RO via the Appeals Management Center (AMC) for further development that included clarifying the exact dates when the Appellant was on active duty (AD), active duty for training (ACDUTRA), and inactive duty training (INACDUTRA), obtaining all of her outstanding medical evaluation or treatment records relevant to her claim, and then having her undergo a VA compensation examination for a medical nexus opinion regarding the likelihood that any of her current low back disability was incurred in or aggravated by her active military service, whether on AD, ACDUTRA or INACDUTRA. After completing this additional development and considering the additional evidence obtained as a consequence, the AMC continued to deny the claim in a January 2013 supplemental statement of the case (SSOC) and since has returned the file to the Board for further appellate consideration of this claim. But it appears that only the Appellant's representative, not the Appellant personally, received a copy of that SSOC. She also indicated she is in the process of gathering additional documents, presumably to try and support her claim, so the Board is again remanding her claim to the RO via the AMC. REMAND The Appellant needs to be provided a copy of the January 2013 SSOC and given opportunity in response to submit the additional documents she has indicated are forthcoming to support her claim. In the prior July 2012 remand the Board indicated that, upon completion of all directed development, the AMC was to readjudicate the Veteran's claim in light of the additional evidence. And if the claim was not granted to her satisfaction, the AMC was to send her and her representative an SSOC and give them an opportunity to respond to it before returning the file to the Board for further appellate consideration of the claim. In January 2013 the AMC issued an SSOC to the Veteran at her address of record, also to her representative, and after receiving a rather immediate response from her representative the following day recertified the appeal and returned the file to the Board later that same month for adjudication. When responding to that SSOC, the Veteran's representative had confirmed his receipt of that SSOC and indicated they did not have any additional evidence regarding the Veteran's Appeal. In order to expedite processing of the Veteran's claim, he asked to please forward the Veteran's case to the BVA immediately, referring to the Board. He further indicated that, if they located and wished to submit evidence at a later time, they were waiving the Veteran's right to have the Veteran's case remanded (sent back) to the Agency of Original Jurisdiction (AOJ), referring to the Veteran's local Regional Office (RO), preferring instead to have the Board consider the new evidence in the first instance and proceed with the adjudication of the Veteran's appeal. In a more recent May 2013 Report of General Information (VA Form 21-0820), however, a VA employee indicated the Veteran had called and advised VA that she had not received a copy of the January 2013 SSOC because her address had changed. She verified protocol and her address was updated in the system. The VA employee also requested that she write the AMC and request a copy of this SSOC, also indicating that note of this would be taken while processing her appeal. In response, she told the VA employee that she was in the process of gathering additional documents. The AMC duly issued the January 2013 SSOC to the Veteran in compliance with VA regulations by mailing the document to her then address of record. There equally is no disputing that her representative received a copy of this SSOC, given his response to it the following day that is in the file. The Veteran nevertheless since has contacted VA and provided good cause as to why she did not receive that SSOC. A review of VA's computer systems, including her electronic ("Virtual VA") file, indicates this SSOC has not been provided to her at her new address. Therefore, since she has indicated she intends to submit additional evidence ("documents"), presumably including in response to this SSOC continuing to deny her claim, the Board finds that she should be provided a copy of this SSOC at her correct address, and then given opportunity to respond to it, before proceeding with the adjudication of her claim. 38 C.F.R. §§ 19.31, 19.37 (2012). Accordingly, this claim is REMANDED for the following action: Provide the Appellant-Veteran a copy of the January 2013 SSOC at her new address. See the VA Form 21-0820 in the file dated May 10, 2013. Give her an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of her claim. She has the right to submit additional evidence and argument concerning this claim the Board is remanding. 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). _________________________________________________ KEITH W. ALLEN 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).