Citation Nr: 1604007	
Decision Date: 02/04/16    Archive Date: 02/11/16

DOCKET NO.  13-02 556	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Seattle, Washington


THE ISSUE

Entitlement to a rating on excess of 10 percent from August 7, 2009 to September 21, 2012 and in excess of 40 percent since September 21, 2012 for degenerative disc disease of the lumbar spine, status post lumbar fusion at L4-L5, L5-S1 with scar (lumbar spine disability)


REPRESENTATION

The Veteran represented by:     Disabled American Veterans


ATTORNEY FOR THE BOARD

Russell Veldenz, Counsel




INTRODUCTION

The Veteran served on active duty from May 2002 to August 2009.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a December 2009 rating decision by the Seattle, Washington Department of Veterans Affairs (VA) Regional Office (RO).

During the pendency of the appeal, in a rating decision in November 2012, the RO increased the rating for the lumbar spine disability from 10 percent to 40 percent, effective September 2012.  The Veteran continued his appeal for a higher rating.  AB v. Brown, 6 Vet. App. 35, 38 (1993). 

The appeal of the Veteran originally included a claim for an increased rating for epididymitis.  In his substantive appeal received in January 2013, the Veteran stated that he wished to proceed only on the issue of a higher rating for the lumbar spine disability.

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


REMAND

In September 2013, the Veteran, through his service representative, requested a hearing before the Board. 

The United States Court of Appeals for Veterans Claims has determined that a Veteran has a right to request a hearing before the issuance of a Board decision.  See Bernard v. Brown, 4 Vet. App. 384, 393 (1993).  Thus, the Veteran must be scheduled for the next available hearing at the RO before a Veterans Law Judge from the Board in the order that the request have been received.  See 38 C.F.R. §§ 20.700, 20.703, 20.704.

Accordingly, the case is REMANDED for the following action:

1.  Schedule the Veteran for a hearing to be conducted at the RO before a Member of the Board and notify him of the scheduled hearing at the current address of record, in the order that the request was received. A copy of the notice provided to the Veteran and his representative of the scheduled hearing should be placed in the record

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 2014).



_________________________________________________
Robert C. Scharnberger
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).