Citation Nr: 1329656 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 09-47 300 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disability, to include as secondary to his service-connected lumbar spine disability. 2. Entitlement to an increased rating for service-connected degenerative disc disease and degenerative changes of the lumbar spine, currently evaluated 40 percent disabling. 3. Entitlement to an initial rating in excess of 10 percent for radiculopathy of the right lower extremity. 4. Entitlement to an initial rating in excess of 10 percent for radiculopathy of the left lower extremity. 5. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Christopher Loiacono, Agent ATTORNEY FOR THE BOARD S. Layton, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from June 1973 to June 1976. This matter is before the Board of Veterans' Appeals (the Board) on appeal of a January 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Procedural history The RO awarded the Veteran service connection for a lumbar spine disability in an August 1976 rating decision, and assigned an initial 10 percent disability rating effective June 26, 1976. Subsequently, the RO increased this rating from 10 to 40 percent in a December 1999 rating decision, effective June 20, 1997. The Veteran filed a claim for an increased disability rating greater than 40 percent for his service-connected lumbar spine disability on March 13, 2008. The RO denied this claim in the above-referenced January 2009 rating decision. The Veteran disagreed with the RO's determination, and perfected an appeal as to that issue. During the course of the appeal, the RO awarded the Veteran service connection for radiculopathy of the right and left lower extremities, and assigned two separate 10 percent disability ratings effective March 13, 2008. See the RO's April 2010 rating decision. These neurologic abnormalities have been medically associated with the Veteran's service- connected lumbar spine disorder. As such, because VA regulation requires that neurologic abnormalities associated with a service-connected spine disorder be assessed and rated separately when considering the overall disability picture of that spine disorder, and in light of the fact that the Veteran in this case has not expressed agreement with the RO's initially assigned ratings for radiculopathy, the issues of entitlement to increased ratings for these associated neurological disabilities are considered to be on appeal as well. 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 Veteran filed a separate claim for TDIU based on his service-connected disabilities [lumbar spine and right and left leg radiculopathy] during the pendency of this appeal, which has been denied by the RO in a November 2010 rating decision. The Veteran's agent filed a timely notice of disagreement, and the RO issued a statement of the case (SOC) in September 2012. In October 2012, the RO received a VA form 9 from the Veteran's agent perfecting an appeal regarding this issue; thus, the issue of entitlement to a TDIU is before the Board. Additionally, the Veteran filed a separate claim for service connection for an acquired psychiatric disability, to include as secondary to his service-connected lumbar spine disability. The Veteran's agent filed a timely notice of disagreement with this determination, and the RO issued a SOC in September 2012. In October 2012, the RO received a VA form 9 from the Veteran's agent perfecting an appeal regarding this issue; thus, the issue of service connection for an acquired psychiatric disorder is before the Board. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND Previously, the Veteran was scheduled to appear for a hearing with a Veterans Law Judge (VLJ) on October 16, 2012. However, in a statement from his agent sent to the Board via facsimile on October 10, 2012, the Veteran withdrew his request for the scheduled hearing. Subsequently, in June 2013, the Veteran's agent requested a personal hearing before a member of the Board at a local VA office. The Veteran has not previously been afforded a Board hearing specifically concerning any of the issues currently on appeal, and no subsequent correspondence has withdrawn this request for a 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 (West 2002) (pertaining specifically to hearings before the Board). In accordance with the Veteran's request (as indicated by his accredited agent), the Board finds that the Veteran should be scheduled for a hearing at the RO before a member of the Board. Accordingly, the case is REMANDED for the following action: The RO should schedule the Veteran for a Board hearing before a Veterans Law Judge, in accordance with his agent's request. The RO should notify the Veteran of the date and time of the hearing, in accordance with 38 C.F.R. § 20.704(b) (2012). 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). _________________________________________________ MICHAEL LANE 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).