Citation Nr: 1610813 Decision Date: 03/17/16 Archive Date: 03/23/16 DOCKET NO. 09-44 711 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an initial rating in excess of 40 percent for multilevel degenerative disc disease of the thoracic and lumbar spine. 2. Entitlement to a higher initial rating for degenerative disc disease with cervical spondylosis, in excess of 20 percent prior to February 24, 2014, and in excess of 30 percent thereafter. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Matthew Schlickenmaier, Associate Counsel INTRODUCTION The Veteran had active duty service from June 1985 to June 1988, December 2004 to October 2005, and from January 2007 to May 2008. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina and Los Angeles, California. The case comes to the Board from the Los Angeles RO. In July 2015, the Veteran testified at a Travel Board hearing before the undersigned. A transcript of the hearing is of record. The Board notes that in a September 2015 correspondence, the Veteran timely appealed a September 2014 rating decision, claiming entitlement to earlier effective dates for awards of service connection for right upper extremity radiculopathy, and left and right lower extremity peripheral neuropathy. She also claimed entitlement to an earlier effective date after the September 2014 rating decision granted an increased rating for service-connected left upper extremity radiculopathy. Generally, where, as here, no statement of the case has been issued, the Board is required to remand rather than refer the appealed issue. See Manlincon v. West, 12 Vet. App. 238 (1999). In this case, however, the Board's review of the Veterans Appeals Control and Locator System indicates that the RO is already taking action on these issues. Accordingly, at this juncture, the Board will decline jurisdiction over that appeal. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into account the existence of these electronic records. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Further development of the appeal is required as a number of pertinent medical records appear to be outstanding. At the July 2015 Board hearing, the Veteran reported that throughout the period on appeal, she had received continuous private treatment for her spine disabilities, to include physical therapy, but that no records dated after 2010 had been submitted to VA. As the Board's review of the claims file confirms that there are essentially no private treatment records dated after 2010, the Veteran should be provided an opportunity to identify and submit any relevant private treatment records. In addition, in a September 2015 correspondence, the Veteran stated that she had submitted "over 1,800 pages of medical records and other documents," many of which appear to relate to her spine disabilities. The Board's review of the claims file shows that only a handful of medical records were associated with the claims file after the July 2015 hearing. While VBMS shows a banner indicating that new documents are pending scanning for inclusion in the electronic claims file, because those documents are labelled as "C File, 6 Volumes" and dated from four months prior to the Travel Board hearing, it is not clear if they are related to the missing 1,800 pages described by the Veteran. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with an opportunity to identify any healthcare provider who treated her for cervical and thoracolumbar spine disabilities since 2010. After securing any necessary authorization from the Veteran, obtain all identified records not already contained in the claims file. If the AOJ cannot locate such records, the AOJ must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The AOJ must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The claimant must then be given an opportunity to respond. 2. Prior to readjudicating the claim, ensure that any documents that are pending scanning in VBMS have been associated with the claims file. If these documents are not related to the 1,800 pages of medical evidence described above, take all necessary action to identify and obtain that evidence, to include contacting the Veteran and requesting that she identify or resubmit such evidence. 3. After completing #1 and #2 above, readjudicate the claims. If evidence received suggests that additional examination is indicated, such examination should be conducted in accordance with applicable procedures. If any benefit requested on appeal is not granted to the Veteran's satisfaction, the appellant and her representative should be furnished a supplemental statement of the case, which addresses all of the evidence obtained after the issuance of the last supplemental statement of the case, and provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. 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). _________________________________________________ MICHAEL D. LYON 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).