Citation Nr: 1416527 Decision Date: 04/14/14 Archive Date: 04/24/14 DOCKET NO. 10-08 243A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased rating for a low back strain evaluated as 10 percent disabling prior to January 18, 2013, and 20 percent disabling thereafter. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Spinnicchia, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1992 to March 1993. These matters come before the Board of Veterans' Appeals (Board) on appeal of an April 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida that continued a 10 percent rating for the Veteran's low back disability. In a February 2010 rating decision, the RO assigned a separate 10 percent rating for the Veteran's right lower extremity radiculopathy, effective January 18, 2008. The Veteran did not express disagreement with this rating action. In September 2012, the Board remanded the case to the RO for further development. In a February 2013 rating decision, the RO assigned a separate 20 percent rating for the Veteran's left lower extremity radiculopathy, effective January 18, 2013. The RO also increased the rating for his right lower extremity radiculopathy to 20 percent, effective January 18, 2013. The Veteran did not express disagreement with this rating action. In the February 2013 rating decision, the RO also increased the rating for the Veteran's low back strain to 20 percent, effective January 18, 2013. Because less than the maximum available benefit for a schedular rating was awarded, the claim remains on appeal before the Board. See AB v. Brown, 6 Vet. App. 35 (1993). In his substantive appeal the Veteran requested that he be afforded a hearing before a Decision Review Officer at his local RO. A hearing was scheduled to take place in November 2010 but the Veteran failed to appear. As he did not request that his hearing be rescheduled, the hearing request is deemed withdrawn. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In the September 2012 remand, the Board instructed the RO to adjudicate the issue of entitlement to a TDIU in the first instance. The RO issued a supplemental statement of the case (SSOC) in February 2013 that addressed this matter. The initial adjudication of the claim for entitlement to a TDIU cannot take place in an SSOC. Mayfield v. Nicholson, 499 F.3d 1317, 1324 (2007); 38 C.F.R. § 19.31 (2013). This claim must be remanded so that the RO can issue a rating decision that adjudicates the issue of entitlement to TDIU in the first instance. Following the February 2013 SSOC, additional evidence and argument was received into the record, namely a December 2013 VA examination report and VA treatment records. As the agency of original jurisdiction (AOJ) has not reviewed this additional evidence and argument, and as the Veteran has not waived his procedural right to have the AOJ review this evidence and argument in the first instance, the claims file must be returned to the RO for a new SSOC. See 38 C.F.R. § 20.1304(c). Accordingly, the case is REMANDED for the following action: 1. The RO must issue a rating decision with respect to the claim for entitlement to a TDIU, and the Veteran must be notified of the determination and his right to appeal. 2. Readjudicate the appeal for an increased rating for the service-connected low back strain. If the benefit sought on appeal is not granted, the RO must furnish the Veteran with an SSOC, and he and his representative are to be provided an opportunity to respond. The case must be then returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the 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. 2013). _________________________________________________ D. JOHNSON Acting 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).