Citation Nr: 1334692 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 04-16 413 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES Entitlement to an extraschedular rating for low back disability. REPRESENTATION Appellant represented by: Penelope E. Gronbeck, Attorney at Law ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The appellant had active military service from October 1963 to September 1966, and March 1974 to March 1978. This matter originally came before the Board of Veterans' Appeals, hereinafter the Board, on appeal from August 2003 and March 2006 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In November 2005 and October 2006, the Board remanded the matter for additional evidentiary development. In July 2007, the found that the evidence did not support the assignment of a disability evaluation in excess of 20 percent for lumbar spine degenerative joint disease or the assignment of a disability evaluation in excess of 10 percent for left lower extremity radiculopathy. The appellant appealed to the United States Court of Appeals for Veterans Claims, hereinafter the Court. In May 2008, the Court granted a Joint Motion for Remand. In September 2008, the Board granted a 40 percent rating for intervertebral disc syndrome. Again the appellant appealed to the Court for review. In an August 2009 Order, the Court again granted a joint motion for remand and vacated the September 2008 decision "that denied entitlement to a disability rating greater than 40% for lumbar spine degenerative joint disease and a rating greater than 10% for associated radiculopathy." In a February 2010 Order, the Court revoked the August 2009 Order, and issued a new Order vacating that part of the Board's decision that denied entitlement to a rating greater than 40 percent for low back disability. The record shows that in October 2008, the RO implemented the Board's September 2008 decision, assigning a single 40 percent evaluation for the low back disorder, effective September 2001. In a September 2009 rating action, the RO determined that the appellant was entitled to a higher evaluation for his low back disorder through the mechanism of separately rating the orthopedic and neurologic components of the disorder. The RO assigned a 20 percent evaluation for limitation of thoracolumbar flexion; a 20 percent evaluation for right lower extremity radiculopathy; and a 20 percent evaluation for left lower extremity radiculopathy. The ratings were effective November 25, 2008 (the date of a VA examination). The Board notes that the August 2003 rating decision also denied entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). Although the appellant initiated an appeal of that denial, in April 2004 he specifically withdrew the TDIU issue. The record shows that he raised the issue again, and it was again denied in a September 2009 rating decision. In August 2010, the Board determined that the issue of an extraschedular rating warranted referral to the Director of Compensation and Pension and remanded the case to the RO. The claim was subsequently returned to the Board. After reviewing the claims files, the Board denied a rating greater than 40 percent prior to November 25, 2008, for lumbar degenerative arthritis; and separate 20 percent ratings since November 25, 2008, for orthopedic manifestations of his low back disability as well as right and left lower extremity radiculopathy. The Board also denied an extraschedular rating. The appellant again appealed to the Court. The Court issued a Memorandum Decision in June 2013. In that action, the Court affirmed the Board's action with respect to the issues involving the schedular disability evaluations assigned for radiculopathy of the extremities and for the low back; however, with respect to the issue of entitlement to an extraschedular rating, the Court vacated and remanded the Board's decision. The appeal is REMANDED to the RO. VA will notify the appellant if further action is required. REMAND Since the Court's issuance of its Memorandum Decision in June 2013, the appellant has requested that he be allowed to provide testimony at a hearing before the Board at his local regional office. This request was most recently submitted in October 2013. Pursuant to 38 C.F.R. § 20.703 (2013), an appellant may request a hearing before the Board subject to the restrictions of 38 C.F.R. § 20.1304 (2013). A hearing on appeal will be granted if an appellant, or his representative, expresses a desire to appear in person. See 38 C.F.R. § 20.700 (2013). The case is REMANDED to the RO for the following development: The RO should schedule the appellant for a hearing before a Veterans Law Judge, as requested by the appellant. See 38 C.F.R. §§ 20.703, 20.704, 20.1304 (2013). All correspondence pertaining to this matter should be associated with the claims folder. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. 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 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). _________________________________________________ JAMES L. MARCH 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).