Citation Nr: 1343100 Decision Date: 12/27/13 Archive Date: 01/07/14 DOCKET NO. 07-39 137 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an evaluation in excess of 20 percent for degenerative disc disease at L5-S1, with herniated nucleus pulposus at L4-5 and herniation of disc at L3-4. 2. Entitlement to a rating in excess of 10 percent for radiculopathy, right lower extremity. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The Veteran served on active duty from October 1988 to April 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The issues on appeal were previously remanded for additional development in November 2011. 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 Unfortunately, it is again necessary to remand this appeal, because the actions directed in the November 2011 Board remand were not substantially accomplished. See Stegall v. West, 11 Vet. App. 268 (1998) (Board remand instructions are neither optional nor discretionary, and compliance is required); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (the veteran is entitled to substantial compliance with the Board's remand directives). Specifically, all current VA medical records dated from October 3, 2007, to the present were to be obtained, to the extent available. However, although the supplemental statement of the case dated in July 2012 lists, as "evidence," VAMC Memphis reports of treatment from November 2008 to May 2012, the Board is only able to locate the following VA treatment records in the file: * Records dated from November 2008 to November 2009, printed December 3, 2009, and explicitly noted to be in response to a search for records containing "sleep." * Records dated from March 15, 2012, to March 27, 2012, in response to a request for records "inclusive since last rating decision on 02/28/12." * Records dated from April 30, 2012, to May 8, 2012, pursuant to a request which does not appear to have specified any dates. An intensive review of the physical claims file, as well as the Veteran's electronic file, has failed to disclose any other records, or records requests, pertaining to the time frame defined in the Board remand. The Board is unable to articulate any basis for finding that the truncated requests constitute substantial compliance with the Board remand request, which was to ensure that all potentially relevant VA treatment records, already considered to be constructively of record, are actually of record. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that documents which were not actually before the adjudicators but had been generated by VA employees or submitted to VA by claimant were, "in contemplation of law, before the Secretary and the Board and should be included in the record"). This is particularly important in this case, where a potential basis for rating the back disability requires incapacitating episodes, requiring bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC shall associate with the Veteran's claims folder any VA treatment records dated from October 3, 2007, through the present, to the extent available. If the records are not available, or if the search for the records yields a negative result, that fact must be clearly documented in the claims file. 2. After undertaking any other development deemed appropriate, readjudicate claims on appeal. If any issue remains denied, furnish the Veteran and his representative with a supplemental statement of the case (SSOC) and afford them an opportunity to respond before the record is returned 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). _________________________________________________ JONATHAN B. KRAMER 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).