Citation Nr: 1601756	
Decision Date: 01/14/16    Archive Date: 01/21/16

DOCKET NO.  10-33 951	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Albuquerque, New Mexico



THE ISSUES

1.  Entitlement to an evaluation in excess of 10 percent for degenerative changes of the lumbar spine prior to October 28, 2008.

2.  Entitlement to an evaluation in excess of 40 percent for degenerative changes of the lumbar spine on or after October 28, 2008.

3.  Entitlement to a temporary total evaluation based on surgical treatment necessitating convalescence.



REPRESENTATION

Appellant represented by:	Christopher Loiacono, Agent



ATTORNEY FOR THE BOARD

M. Postek, Associate Counsel


INTRODUCTION

The Veteran served on active duty from October 1972 to October 1992.
      
This case originally came before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico.

The Board remanded the claims currently on appeal for further development in October 2014.  The detailed procedural history of this appeal until that time is provided in that remand, including the proceedings before the United States Court of Appeals for Veterans Claims (Court) based on the prior appealed Board decision.  While the case was on remand, the RO granted service connection for a surgical scar of the lower back associated with the lumbar spine disability in a July 2015 rating decision.  The case has since been returned to the Board for appellate review.

This appeal was processed using the Veterans Benefits Management System (VBMS).  The Virtual VA electronic claims file does not contain any additional documents pertinent to the matter addressed in this decision. 

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the Veteran if further action is required.


REMAND

The Veteran originally requested a hearing in his August 2010 substantive appeal; however, he cancelled that request during a telephone call with the RO.  See July 2012 report of contact.  He thereafter requested a Board hearing at the RO in a written statement received in August 2015.  To date, he has not been afforded such a hearing.  Thus, the Veteran should be scheduled for a hearing before the Board at the RO in Albuquerque, New Mexico.  38 C.F.R. § 20.704 (2015).

Accordingly, the case is REMANDED for the following action:

The AOJ should schedule the Veteran for a hearing with a Veterans Law Judge of the Board at the local RO in accordance with his request.  The Veteran should be notified in writing of the date, time, and location of the hearing.  After the hearing is conducted, or if the Veteran withdraws the hearing request or fails to report for the scheduled hearing, the claims file should be returned to the Board in accordance with appellate procedures.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims 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 2014).



_________________________________________________
J.W. ZISSIMOS
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).