Citation Nr: 1336975	
Decision Date: 11/14/13    Archive Date: 11/26/13

DOCKET NO.  10-34 705	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Reno, Nevada


THE ISSUE

Propriety of reduction of the evaluation for degenerative joint and disc disease of the lumbar spine from 40 percent disabling to 20 percent disabling, effective in November 2009.  


WITNESSES AT HEARING ON APPEAL

Appellant (the Veteran) and A. F.


ATTORNEY FOR THE BOARD

Joseph P. Gervasio, Counsel



INTRODUCTION

The Veteran, who is the appellant, served on active duty from April 1993 to May 1996.  

This case comes to the Board of Veterans' Appeals (Board) on appeal of an August 2009 rating decision of the Reno, Nevada, Regional Office (RO) of the Department of Veterans Affairs (VA), which reduced the evaluation for degenerative joint and disc disease of the lumbosacral spine from 40 percent to 20 percent, effective November 1, 2009.  

In November 2011, a videoconference hearing was held before the undersigned.  A transcript of the hearing is associated with the Veteran's claims file.

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 Veteran has appealed the reduction of the evaluation for degenerative disc and joint disease of the lumbar spine.  During the Board hearing before the undersigned in November 2011, the Veteran testified that he had recently received treatment for his back disability at the emergency room at Nellis Air Force Base (Nellis) and had been in receipt of outpatient treatment at the VA medical facility in Las Vegas, Nevada (VAMC) for incapacitating episodes of his low back.  He also testified that he has applied, and been approved for, leave with his employer, the United States Postal Service (USPS) under the Family Medical Leave Act (FMLA).  He has submitted documentation that he has taken a significant amount of FMLA during the 2009 leave year.  The Court of Appeals for Veterans Claims (Court) has held that the duty to assist requires the VA to attempt to obtain records from other 

Federal agencies when the VA has notice of the existence of such records.  Lind v. Principi, 3 Vet. App. 493, 494 (1992).  These records could have significant probative value in the determination of the Veteran's low back disability rating.  As such, they should be obtained prior to appellate consideration.  

Accordingly, the case is REMANDED for the following action:

1.  After obtaining any necessary consent, The RO/AMC should contact the medical facility at Nellis and the VAMC and request copies, for association with the claims folder, of any and all records of treatment that the Veteran received at those facilities since 2011.  

2.  After obtaining any necessary consent, The RO/AMC should contact the USPS and request copies, for association with the claims folder, of any and all documents utilized in the application and approval of FMLA.  

3.  Thereafter, the RO/AMC should readjudicate the issue on appeal.  If the determination remains unfavorable to the Veteran, he should be provided with a supplemental statement of the case (SSOC) that addresses all relevant actions taken on the claim(s) for benefits.  The Veteran should be given an opportunity to respond to the SSOC prior to returning the case to the Board for further 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).



_________________________________________________
F. JUDGE FLOWERS
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).