Citation Nr: 1417107 Decision Date: 04/16/14 Archive Date: 04/24/14 DOCKET NO. 10-04 259 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an increased rating in excess of 20 percent for orthopedic residuals of degenerative disc disease of the lumbar spine. 2. Entitlement to a separate compensable rating for right lower extremity radiculopathy. 3. Entitlement to a separate compensable rating for left lower extremity radiculopathy. 4. Entitlement to an increased rating in excess of 10 percent for right foot hallux valgus. 5. Entitlement to an increased rating in excess of 10 percent for left foot hallux valgus. 6. Entitlement to an initial compensable rating for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. J. Drucker, Counsel INTRODUCTION The Veteran served on active duty from October 1965 to October 1967 and from April 1973 to September 1991. This case initially came to the Board of Veterans' Appeals (Board) on appeal from July 2008 and July 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, that, in pertinent part, denied entitlement to increased ratings for lumbar spine, bilateral feet, and left ear hearing loss disabilities, denied service connection for bilateral lower extremity radiculopathy, and found that new and material evidence was submitted with respect to the claim for service connection for right ear hearing loss. The Veteran testified during a hearing at the RO before the undersigned in December 2011. A transcript of the hearing is of record. During that hearing, the Veteran waived consideration by the agency of original jurisdiction (AOJ) in regard to evidence obtained following the last adjudication of the claim by the RO. See 38 C.F.R. § 20.800 (2013). In a May 2012 decision, the Board reopened a previously denied claim for service connection for right ear hearing loss, remanded the reopened claim, and a claim for a compensable rating for left ear hearing loss. The Board also denied a rating in excess of 20 percent prior to February 3, 2010 for the orthopedic residuals of lumbar spine disability, and granted a 40 percent rating from that date for the back disability; granted 10 percent ratings for right and left lower extremity radiculopathy; and denied ratings in excess of 10 percent for right and left foot hallux valgus. In a March 2013 rating decision, the Appeals Management Center (AMC) granted service connection for right ear hearing loss, and assigned a noncompensable disability rating for bilateral hearing loss, effective October 1, 1991. The Veteran appealed the Board's May 2012 decision to the United States Court of Appeals for Veterans Claims (court). In a September 2013 Joint Motion for Remand, the appellant and VA General Counsel moved to vacate that part of the Board's May 2012 decision that denied a rating in excess of 20 percent prior to February 3, 2010 for the orthopedic residuals of lumbar spine disability and granted a 40 percent rating from that date for the back disability; granted 10 percent ratings for right and left lower extremity radiculopathy; and denied ratings in excess of 10 percent for right and left foot hallux valgus. Pursuant to a settlement agreement in the case of the National Org. of Veterans' Advocates, Inc. v. Sec'y of Veterans Affairs, 725 F.3d 1312 (Fed. Cir. 2013), the Board's May 2012 decision was identified as potentially affected by an invalidated rule relating to the duties of the Veterans Law Judge who conducted the December 2011 Board hearing. In order to remedy any such potential error, the Board sent the Veteran a letter notifying him of an opportunity to receive a new hearing and/or a new decision from the Board. Subsequently, in an October 2013 signed statement, the Veteran requested that the Board proceed to immediately readjudicate his case. He did not respond to the Board's December 2013 letter offering him the opportunity to testify at a new hearing before a Veterans Law Judge and receive a new decision. The Board finds that all due process requirements were met regarding the Veteran's hearing request. The appeal is REMANDED to the RO via the AMC. VA will notify the appellant if further action is required. REMAND The Virtual VA electronic file includes relevant VA medical records and reports, dated from May 2010 to June 2013, that were not considered by the agency of original jurisdiction (AOJ) in the most recent supplemental statements of the case (SSOC). In February 2014, the Board asked the Veteran's representative whether it wanted to waive initial AOJ review of these pertinent records. 38 C.F.R. § 20.1304(c) (2013). The representative returned the case to the Board without providing a waiver. Accordingly, the case is REMANDED for the following action: Provide the Veteran and his representative with a SSOC that represents a review of all evidence considered since the February and March 2011 SSOCs. 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. 2013). _________________________________________________ Mark D. Hindin 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).