Citation Nr: 1604204 Decision Date: 02/04/16 Archive Date: 02/11/16 DOCKET NO. 13-23 647 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for a lumbar spine disability for the period prior to November 5, 2008, and in excess of 20 percent thereafter. 2. Entitlement to an extension of a temporary total disability (TTD) rating under 38 C.F.R. § 4.30 beyond May 31, 2007, based on the need for convalescence following surgical treatment of a service-connected lumbar spine disability. REPRESENTATION Appellant represented by: Mississippi State Veterans Affairs Board ATTORNEY FOR THE BOARD J. Juliano, Counsel INTRODUCTION The Veteran served on active duty from July 1966 to July 1968, and from February 1991 to May 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Board notes by way of background that the October 2010 rating decision effectuated a September 2010 Board decision that awarded service connection for a lumbar spine disability. A July 2013 rating decision awarded a higher 20 percent rating for the Veteran's lumbar spine disability, effective November 5, 2008. As this did not constitute an award of the full benefit sought on appeal, this matter remains on appeal before the Board. See AB v. Brown, 6 Vet. App. 35 (1993). In September 2015, the Board remanded the Veteran's claims for further development. These matters are now returned to the Board for further appellate review. The Board notes that a more detailed procedural history is provided in the September 2015 Board remand. The evidence does not indicate that the Veteran is unable to obtain or retain substantially gainful employment due to the back disability. See, e.g., VA treatment record, November 2015 (works as a police chief). Therefore, there is no inferred claim for a total disability rating based on individual unemployability (TDIU). See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). This appeal was processed using the VBMS paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND The Veteran's lumbar spine disability is assigned a 10 percent rating under Diagnostic Code 5237 prior to November 5, 2008, and 20 percent thereafter. The Veteran seeks higher initial ratings. He also seeks an extension of his TTD under 38 C.F.R. § 4.30 beyond May 31, 2007, based on the need for continued convalescence after surgical treatment for his lumbar spine disability. Most recently, in September 2015, the Board remanded the Veteran's claims because in August 2015, the RO had requested a VA examination of the Veteran's lumbar spine, but there was no copy of any subsequent VA examination report associated with the claims file. Subsequently, a September 2015 VA examination was performed, and a copy of the report was associated with the claims file. Regrettably, however, there appear to be several private treatment records outstanding. The Board notes by way of background that the Veteran's private treatment records in the claims file include operative reports dated in December 2006 and April 2007 reflecting surgery was performed by Dr. A.L. at St. Dominic Hospital. The claims file also includes private treatment records from Dr. A.L.'s practice at Jackson Neurosurgery Clinic dated through September 2007. The September 2007 record reflects further surgical treatment was discussed, but no subsequent records from Dr. A.L. are of record. Recent VA treatment records dated between October 2015 and January 2016 reflect the Veteran may have had further treatment by Dr. A.L. They also reflect he was seen by Dr. I. at St. Dominic Hospital, and Dr. D.C. at NewSouth Neurospine. A recent January 2016 VA treatment record specifically notes that the Veteran had a future appointment scheduled with Dr. D.C. at New South Neurospine on January 28, 2016. See CAPRI (VVA) received January 2016 at 30-39. Therefore, this matter should be remanded so that any outstanding private treatment records relating to the Veteran's lumbar spine from Dr. A.L., from Jackson Neurosurgery and St. Dominic Hospital; dated from September 2007 to present, from Dr. I. of St. Dominic dated from October 2015 to present; and from Dr. D.C. of NewSouth Neurospine dated from October 2015 to present, may be associated with the claims file. In addition, on remand, all of the Veteran's more recent VA treatment records dated to present should be associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. Associate with the claims file any outstanding private treatment records relating to the Veteran's lumbar spine disability from as follows: a) Dr. A.L., including from Jackson Neurosurgery and St. Dominic Hospital, dated from September 2007 to present; b) Dr. I. of St. Dominic Hospital dated from October 2015 to present; and c) NewSouth Neurospine, including from Dr. D.C., dated from October 2015 to present. Also, ask the Veteran to identify any additional private treatment for his lumbar spine disability from 2007 to present, which may include records from his non-VA general practitioner, Dr. S. See April 16, 2009 VA nurse practitioner record. If any requested records are found to be unavailable, this should be specifically noted in the claims file, and the Veteran should be notified of such. 2. Associate with the Veteran's VBMS file all of the Veteran's more recent VA treatment records dated from January 2016 to present. 3. Also associate with the Veteran's VBMS file a copy of the note from Dr. I (reportedly showing a diagnosis of lumbar spondylosis with myelopathy) which was reportedly scanned in but which is not available in the Veteran's VBMS/Virtual VA record. See Nov. 6, 2015 addendum note in the Veteran's VA medical records on Virtual VA which references this report. 4. Also associate with the Veteran's VBMS file a copy of the progress note from Dr. I from October 28, 2015 which was scanned into Vista Imaging, but which is not available in the Veteran's VBMS/Virtual VA record. See Nov. 4, 2015 addendum in the Veteran's VA medical records on Virtual VA which references this document. 5. Then, take any other development action that is deemed warranted and readjudicate the Veteran's claims. If any claim remains denied, the Veteran should be provided a Supplemental Statement of the Case (SSOC). After the Veteran and his representative have been given the applicable time to submit additional argument, the claim(s) should be returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal 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). _________________________________________________ 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).