Citation Nr: 1601885 Decision Date: 01/15/16 Archive Date: 01/21/16 DOCKET NO. 09-41 998 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for service-connected lumbar spine degenerative disc disease (DDD) prior to November 25, 2009. 2. Entitlement to a disability rating in excess of 40 percent for service-connected lumbar spine DDD after November 25, 2009. 3. Entitlement to a compensable disability rating for service-connected right lower extremity radiculopathy prior to November 25, 2009. 4. Entitlement to a disability rating in excess of 20 percent for service-connected right lower extremity radiculopathy after November 25, 2009. 5. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant (Veteran) represented by: Disabled American Veterans (DAV) WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Christopher McEntee, Counsel INTRODUCTION The Veteran served on active duty from August 1960 to October 1963 and November 1963 to October 1967. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran's September 2007 claim for increased disability ratings for service-connected lumbar spine DDD and right leg radiculopathy were initially denied in a May 2008 rating decision. In a December 2009 rating decision, the RO granted an increased rating for lumbar spine DDD to 40 percent disabling and for right leg radiculopathy to 20 percent disabling, both effective November 25, 2009, the date of a VA medical examination. The Veteran disagreed and perfected an appeal. In April 2011, the Veteran and his representative presented testimony and evidence at a hearing at the RO before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been included in the record. In January 2012 and July 2014, the Board remanded this matter for additional development and medical inquiry. The record in this matter consists solely of electronic claims files and has been reviewed. New and relevant documentary evidence has not been added to the record since the November 2014 Supplemental Statement of the Case (SSOC). 38 C.F.R. §§ 19.31, 20.1304 (2015). In a statement received in February 2015, the Veteran indicated that he wanted to appoint an attorney (C.R.) as his new representative. On November 3, 2015, in a phone conversation with a Board administrative employee, the Veteran indicated that he no longer wanted to appoint Attorney C.R. as his representative. On November 13, 2015, the Board mailed to the Veteran notification stating that, if he did not execute a new VA Form 21-22 in favor of a new representative, the Board would continue to regard DAV (which he appointed in September 2001) as his current representative. As the Veteran did not respond, DAV remains the Veteran's appointed representative. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND This matter must be remanded to ensure compliance with a certain directive noted in the July 2014 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand order of the Board is not complied with, the Board errs as a matter of law if it fails to ensure compliance). In the July 2014 remand, the Board requested (in relevant part) that the Veteran be provided an additional opportunity to either submit private medical evidence, or to authorize VA to obtain such evidence via submission of a properly executed VA Form 21-4142. The Board particularly noted that private medical evidence pertaining to an October 2012 back surgery was not of record. In response, in an August 2014 letter, the AOJ notified the Veteran of the Board's request, attaching a VA Form 21-4142 for the Veteran's use in the event he desired VA's assistance in obtaining the outstanding evidence. In October 2014, the Veteran provided such a form to the AOJ. The form listed two private providers. In an accompanying statement, the Veteran indicated that the providers would have relevant evidence pertaining to the October 2012 surgery. The AOJ did not respond to the Veteran's request, however. 38 C.F.R. § 3.159. Accordingly, the case is REMANDED for the following action: 1. Request relevant medical evidence pertaining to the Veteran from the providers listed in the executed October 2014 VA Form 21-4142. The electronic claims file should contain documentation of the attempts made to obtain the records. The Veteran should also be informed if reasonable efforts to obtain such evidence are unsuccessful, and should be given an opportunity to submit the records in question. 38 C.F.R. § 3.159 (2015). 2. Ensure that the above action has been accomplished. Then, after conducting any other development deemed necessary, readjudicate the Veteran's claims to include the claim to a TDIU. If a benefit sought on appeal remains denied, provide the Veteran with a SSOC and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board. 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. 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ S.S. TOTH 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).