Citation Nr: 1329132 Decision Date: 09/11/13 Archive Date: 09/17/13 DOCKET NO. 07-28 087A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for thoracolumbar spine disability. 2. Entitlement to an initial rating higher than 10 percent for degenerative arthritis of the cervical spine. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD A.E.H. Gibson, Associate Counsel REMAND The Veteran served on active duty from September 1982 to September 1992. This appeal to the Board of Veterans' Appeals (Board/BVA) is from an October 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for degenerative arthritis of the cervical spine and assigned a 10 percent initial rating for this disability retroactively effective from February 8, 2006, the date of receipt of this claim. The Veteran appealed for a higher initial rating. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). This appeal also concerns a more recent October 2008 RO decision that denied service connection for additional disability said to be affecting the remaining, i.e., thoracic and lumbar (thoracolumbar) portion of the spine. In November 2012, as support for his claims, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge of the Board. The Board subsequently, in February 2013, remanded the claims to the RO via the Appeals Management Center (AMC) for further development and consideration, including especially obtaining all outstanding records of evaluation or treatment for cervical and thoracolumbar spine disability since April 2010, whether from VA or privately. The Veteran was then to undergo an additional VA compensation examination reassessing the severity of his cervical spine disability and for supplemental comment (i.e., an addendum opinion) regarding the etiology of his additionally claimed thoracolumbar spine disability, particularly insofar as the likelihood it is directly related or attributable to his military service, and especially to injuries sustained in a March 1992 automobile accident while in service, or alternatively secondarily related to his service in that it was caused or aggravated by his service-connected cervical spine disability. The AMC completed this additional development of the claims and in March 2013 issued a Supplemental Statement of the Case (SSOC) continuing to deny the claims. In April 2013 the AMC recertified the claims to the Board, and in May 2013 the Board acknowledged receipt (return) of the claims file. Meanwhile, also in April 2013 the Veteran had submitted additional evidence, but to the RO rather than to the AMC, consisting of a personal statement and a supporting medical nexus opinion from Dr. P. V. of the South Texas Spinal Clinic. The Veteran indicated the evidence was in response to the March 2013 SSOC. He also later faxed this same evidence to the Board in May 2013 to ensure it made it into his file for consideration. The Board then sent him a letter in July 2013 acknowledging receipt of this additional evidence along with a form asking that he clarify whether he wanted the Board or the Agency of Original Jurisdiction (AOJ), i.e., the RO/AMC, to initially consider this additional evidence. In his August 2013 response, he asked to please remand (send back) his case to the AOJ for review of the additional evidence that was submitted in his appeal. He therefore did not waive this right, preferring to have the AOJ rather than the Board consider this additional evidence in the first instance. See 38 C.F.R. §§ 19.31, 19.37, 20.1304. Accordingly, the claims are again REMANDED for the following additional consideration: 1. Consider the additional evidence submitted since the March 2013 SSOC. In particular, this additional evidence includes the Veteran's April 2013 personal statement and the April 2013 supporting medical nexus opinion from Dr. P. V. of the South Texas Spinal Clinic. If, after considering this additional evidence, the claims are not granted to the Veteran's satisfaction, send him and his representative another SSOC addressing this additional evidence and give them an opportunity to respond to it. Then return the claims file to the Board for further appellate consideration of the claims. The Veteran has the right to submit additional evidence and argument concerning these claims the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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).