Citation Nr: 1326524 Decision Date: 08/20/13 Archive Date: 08/26/13 DOCKET NO. 02-21 518 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an extraschedular evaluation for chronic low back strain. 2. Entitlement to an extraschedular evaluation for chronic fatigue syndrome. 3. Entitlement to an effective date prior to April 26, 2004 for grants of service connection for radiculopathies of the bilateral lower extremities. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The Veteran served on active duty from March 1981 to September 1992. This case originally came before the Board of Veterans' Appeals (Board) on appeal of rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In an October 2008 decision, the Board, in pertinent part, denied the Veteran's claim of entitlement to an initial rating in excess of 10 percent for low back strain prior to September 26, 2003, and in excess of 20 percent thereafter, as well as his claim for an initial rating in excess of 40 percent for chronic fatigue syndrome prior to August 15, 2000. The Veteran appealed the October 2008 decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion for Partial Remand (May 2010 Order), the Court vacated that portion of the October 2008 decision which denied the Veteran's claims for increased disability ratings for his back disability and chronic fatigue syndrome. At that time, the parties agreed that a remand was warranted for the Board to provide a more adequate statement of reasons or bases. Subsequently, in September 2010, the Board denied the Veteran's claim for entitlement to an initial disability rating in excess of 10 percent for his chronic low back strain, granted a rating of 20 percent from February 6, 1998, and denied a rating in excess of 20 percent from September 26, 2003. The Board also denied entitlement to an initial rating in excess of 40 percent for chronic fatigue syndrome. The Board remanded the issues of entitlement to extraschedular evaluations for his low back strain and chronic fatigue syndrome. In the September 2010 decision, and in a subsequent November 2011 remand, the Board characterized the extraschedular issues as limited to the time period prior to November 16, 1999. However, upon review of the claims file, the Board observes that the May 2010 Joint Motion for Partial Remand did not preserve its October 2008 conclusion that the Veteran was ineligible for extraschedular evaluations of his back and chronic fatigue disabilities after November 1999. Further, the September 2010 decision does not resolve the issues of entitlement to extraschedular evaluations from November 16, 1999. The Board has recharacterized the issues on the title page to correctly reflect the procedural history. See 38 C.F.R. § 19.35 (2012) (certification is for administrative purposes and does not serve to either confer or deprive the Board of jurisdiction of an issue). The Veteran provided testimony at a March 2012 hearing in Waco, Texas before the below-signed Veterans Law Judge. A transcript of that hearing has been associated with the claims file. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. Upon review of this case, it is unclear whether, in addition to the issues currently before the Board, the Veteran seeks entitlement to an earlier effective date for the award of a total disability rating based on individual unemployability. Inasmuch as that issue has not been developed or certified for appellate review, it is not for consideration at this time. It is, however, being referred to the RO for clarification and, if necessary, appropriate action. This case was last before the Board in May 2012, at which time it was remanded for additional development. The case is now, once more, before the Board for appellate review. Finally, for reasons which will become apparent, this appeal is once again being REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. VA will notify the appellant if further action is required. REMAND At the time of Veteran's prior hearing before the Board in March 2012, the issues upon which testimony was taken were not the same as those currently before the Board. More specifically, while at that time of that hearing, testimony was taken on the issue of entitlement to an earlier effective date for awards of service connection for radiculopathies of the bilateral lower extremities (an issue still before the Board), testimony was also taken on the issues of entitlement to earlier effective dates for awards of extraschedular evaluations for low back strain and chronic fatigue syndrome, issues different from those currently being adjudicated. The Board further notes that, in recently-received correspondence of July 2013, the Veteran requested a "Board hearing at the local VA office," that is, a Travel Board hearing. Pursuant to 38 C.F.R. § 20.700 (2012), a hearing on appeal will be granted to an appellant who requests a hearing and is willing to appear in person. See also 38 U.S.C.A. § 7107 (2012) (pertaining specifically to hearings before the Board). Inasmuch as the RO schedules Travel Board hearings, and the Veteran has opted for an additional hearing, a remand of this matter to the RO is in order. Accordingly, the case is once again remanded to the AMC/RO for the following action: The AMC/RO should take appropriate action to schedule the Veteran for a hearing before a traveling Veterans Law Judge at the RO located in Waco, Texas. A copy of the letter scheduling the Veteran for that hearing, along with a transcript of the hearing, should be included in the claims folder. Following completion of the above action, the Veteran's claims folder, if in order, should be returned to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matter or 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). _________________________________________________ CHERYL L. MASON 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).