Citation Nr: 1341952 Decision Date: 12/19/13 Archive Date: 12/31/13 DOCKET NO. 09-16 092 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES Whether new and material evidence has been submitted to reopen a claim for service connection for a back disability to include degenerative disc disease, arthritis, post traumatic back strain, and left leg radiculopathy. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Acosta, Associate Counsel INTRODUCTION The Veteran had active service from April 2, 1973 to May 15, 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a December 2008 rating decision of the Cleveland, Ohio, Regional Office (RO) of the Department of Veterans Affairs (VA). The Board has reviewed the Veteran's electronic record (Virtual VA) prior to remanding this case. The Veteran was afforded a hearing in August 2013 before the undersigned. A transcript of the proceeding is of record. The matter on appeal came up two separate issues: (1) new and material evidence to reopen a claim for service connection for low back disability and (2) service connection for disability of the left lower extremity. However, as review of the Veteran's contentions, along with the evidence of record, shows that his left legs symptoms (neurological) have been attributed to his low back disorder. A diagnosis of radiculopathy has been made. The Schedule of Ratings, under Note (1) preceding Diagnostic Code 5235, considers neurological abnormalities with disabilities of the spine and states, in the pertinent part, to "evaluate any associated objective neurologic abnormalities [...] separately, under an appropriate diagnostic code." See 38 C.F.R. § 4.17a. Thus, as the radiculopathy that the Veteran experiences has been attributed to his low back disability, the disability would not be a separate claim but would be evaluated along with the Veteran's back disability if it is service connected. The Board has thereby reclassified the Veteran's claim for service connection for a leg disability as another feature of his back disability. Indeed, even if it were to remain a separate claim, it would still depend on the outcome of the back disability claim. 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 There is outstanding VA medical evidence. At his August 2013 hearing before the Board, the Veteran indicated that he was treated at the Cleveland Veterans Affairs Medical Center (VAMC) at Wade Park from 1973 to 1974. VA has not attempted to obtain these records. The record also contains a September 2008 consent to release medical information (Form 21-4142) wherein the Veteran identified treatment at the Brecksville VAMC. It remains unclear as to whether all the records from facility have been obtained. A request should be made for all identified VA records. See Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should attempt to obtain copies of records pertinent to the Veteran's back treatment, which have not yet been associated, which include the Cleveland VAMC at Wade Park from 1973 to 1974 and record from the Cleveland VAMC at Brecksville. Any archived records should be retrieved from storage. If the RO/AMC cannot obtain records identified, a notation to that effect should be included in the file. The Veteran is to be notified of unsuccessful efforts in this regard. 2. If after the above development is completed and additional records are received which shed additional light on the nature, etiology, or onset of his back disability and left leg disability, a determination should be made as to whether an additional medical opinion is warranted. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be re-adjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. The Veteran 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 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). _________________________________________________ MICHEAL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).