Citation Nr: 1325215 Decision Date: 08/08/13 Archive Date: 08/13/13 DOCKET NO. 08-32 258 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to an initial disability rating in excess of 20 percent prior to August 15, 2009, and in excess of 40 percent beginning August 15, 2009, for degenerative disc disease of the lumbar spine (lumbar spine disability). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Adamson, Counsel INTRODUCTION The Veteran served on active duty from June 1981 to August 1981, and from September 2004 to January 2006. The Veteran also had service in the Indiana Army National Guard. This case comes before the Board of Veterans' Appeals (Board) on appeal of a May 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana, which assigned an initial rating of 20 percent for lumbar spine disability and denied service connection for a cervical spine disability. During the course of the appeal, the originating agency awarded a separate 10 percent rating for right lower extremity radiculopathy, and awarded a 40 percent rating for the lumbar spine disability, effective August 15, 2009. The Veteran was scheduled for a hearing before a Decision Review Officer (DRO) at the Indianapolis RO in April 2009. He failed to report for the hearing without explanation and has not requested that his hearing be rescheduled. Thus, his DRO hearing request is deemed withdrawn. In an August 2012 decision, the Board awarded service connection for the cervical spine disability, and denied ratings in excess of those assigned for the lumbar spine and right lower extremity radiculopathy. The Veteran appealed the Board's decision as to the lumbar spine ratings to the U. S. Court of Appeals for Veterans Claims (Court). In a May 2013 joint motion, the parties requested that the Court vacate the February 2012 Board decision as to the lumbar spine ratings and remand the claim for further development and readjudication. In a May 2013 Order, the Court granted the joint motion. In both the joint motion and the Court's Order, the parties and the Court confirmed that the grant of service connection for the cervical spine disability, and the denial of a rating in excess of 10 percent for the right lower extremity radiculopathy, were not under appeal. As such, the only issue for the Board's consideration at this time is that of the initial ratings assigned for the lumbar spine disability. The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. In the June 2012 informal hearing presentation, the Veteran's representative indicated that there is clear and unmistakable error in the October 2007 rating decision that assigned an effective date in August 2006 for the grant of service connection for tinnitus. It appears that this issue has not yet 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. REMAND The Board is of the opinion that additional development is required before the Veteran's claim is decided. The Veteran submitted a statement in July 2013 confirming that he receives all of his treatment at the VA Medical Center (VAMC) in Indianapolis, Indiana. He specifically reported that he has received treatment since 2008, and that he wishes for the RO to review the records of that treatment prior to the Board's adjudication of his appeal. The Board's review of the record has disclosed that no treatment records dated after May 2008 are within the claims files or Virtual VA. Thus, this matter requires remand in order for the originating agency to obtain all relevant treatment records since May 2008 from the Indianapolis VAMC, and readjudicate the claim per the Veteran's request, prior to returning the claims files to the Board. Also, the Veteran was most recently afforded a VA examination related to his lumbar spine disability in August 2009, four years ago. As the Veteran has continued to express that his lumbar spine disability is of a greater severity than the present rating reflects, and that he has undergone continuing treatment, the Board finds that a 2009 examination is too remote to determine the current level of severity of the disability. Therefore, a remand to afford the Veteran a current VA examination is in order. In light of these circumstances, the case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. The RO or the AMC should undertake appropriate development to obtain any outstanding, pertinent treatment records, to include records pertaining to the Veteran's treatment for his lumbar spine disability since May 2008 at the Indianapolis, Indiana, VAMC. 2. If any requested records related to remand instruction 1 are not available, such should be reflected in the record and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 3. Once the record is complete to the extent possible, the RO or the AMC should afford the Veteran an examination by an examiner with sufficient expertise to determine the nature and extent of all impairment due to his service-connected lumbar spine disability. The claims folders and any pertinent evidence in Virtual VA that is not contained in the claims folders must be made available to and reviewed by the examiner. Any indicated studies should be performed. The RO or the AMC should ensure that the examiner provides all information required for rating purposes. 4. The RO or the AMC should also undertake any other development it determines to be warranted. 5. Then, the RO or the AMC should readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the RO or the AMC should furnish to the Veteran and his representative a supplemental statement of the case and afford them the requisite opportunity to respond. Thereafter, if indicated, 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. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. 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).