Citation Nr: 1333947 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 10-08 318A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial increased rating for status post C3-C4 anterior cervical discectomy and fusions C3-C4 and C5-C7 with bone grafts from the right hip, rated as 20 percent disabling prior to July 10, 2010 and 30 percent disabling thereafter. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from September 1974 to September 1978. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2003 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Washington, D.C., which, in pertinent part, granted service connection for a cervical spine disability with an initial 20 percent evaluation assigned effective April 2, 2003. Jurisdiction over the claims file is currently held by the RO in St. Petersburg, Florida. In October 2010, the Veteran submitted a statement describing symptoms associated with an in-service motor vehicle accident including constant back pain, left leg weakness, and right leg loss of sensation. The Board interprets this statement as initiating claims for whether new and material evidence has been submitted to reopen claims for service connection for degenerative disc disease of the lumbar spine, weakness of the left lower extremity, and dysesthesia of the right lower extremity. These issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them and they are referred to the AOJ for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Board finds that additional development is necessary before a decision may be rendered in this case. First, the Veteran must be contacted and asked to clarify several matters. In a form accompanying his March 2010 substantive appeal, the Veteran indicated that he wished to appear at a hearing before a decision review officer (DRO) at the RO, but also stated that he wanted his case to proceed directly to the Board without a hearing. Clarification is necessary to determine whether the Veteran still desires a hearing at the local VA office. Additionally, in September 2010, the Veteran indicated that he would soon undergo surgery on his cervical spine; the current record does not indicate whether such surgery was performed. The Veteran should be asked to clarify whether he has undergone surgery for his service-connected cervical spine disorder. The Veteran should also be provided a copy of a July 2004 orthopedic examination performed while he lived overseas in Naples, Italy. The Veteran has repeatedly indicated that he was never provided a copy of this examination due to VA misplacing his records, but review of the claims file includes a copy of the July 1, 2004 examination report. Remand is also necessary to obtain the Veteran's complete VA treatment records. In October 2008, the Veteran reported that he received treatment at the Augusta VA Medical Center (VAMC) from July 2005 to December 2007 and at the Miami VAMC beginning in January 2008. More recently, the Veteran stated in an August 2013 letter to his congressman that he was receiving treatment at the Viera Community Based Outpatient Clinic (CBOC) (associated with the Orlando VAMC) as a member of the Spinal Cord Injury Program. While the claims file currently contains some VAMC treatment records, these records are only from the Miami facility dating through January 2010. As VA has knowledge of the existence of additional VA records that may support the claim, remand is required. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (where VA has constructive and actual knowledge of the availability of pertinent reports in the possession of the VA, an attempt to obtain those reports must be made). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and ask that he clarify whether he still desires a hearing before a DRO at the local VA office. If the Veteran indicates that he wishes to appear at a local hearing, schedule the hearing following the usual procedures. The Veteran must receive notice of the hearing at his current address of record. The Veteran should also be asked to clarify whether he has undergone surgery on his surgical spine, and if so, to provide the place and date of the procedure. 2. Provide the Veteran with a copy of the July 1, 2004 orthopedic examination located in volume 1 of the claims file. 3. Obtain the Veteran's complete records of VA treatment from the Augusta VAMC and the Orlando VAMC. Records from the Miami VAMC dating from January 2010 should also be obtained. Any records received pursuant to this request must be associated with the paper or virtual claims file. If the Veteran reports that he underwent surgery on the surgical spine at any VA facility, records associated with this procedure must also be obtained. 4. Readjudicate the claim for an increased initial rating for the service-connected cervical spine disability. If the benefit sought on appeal is not fully granted, issue a supplemental statement of the case (SSOC) before returning the case to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter 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. 2013). _________________________________________________ MILO H. HAWLEY 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) (2013).