Citation Nr: 1613174	
Decision Date: 03/31/16    Archive Date: 04/07/16

DOCKET NO.  10-04 159A	)	DATE
	)
	)

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


THE ISSUES

1. Entitlement to an initial rating higher than 20 percent for status post diskectomy L5-S1, with implanted nerve stimulator and associated degenerative disk disease, prior to January 28, 2011.

2. Entitlement to a rating higher than 40 percent for status post diskectomy L5-S1, with implanted nerve stimulator and associated degenerative disk disease, from January 28, 2011.

3. Entitlement to a total disability rating based on individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	Disabled American Veterans



ATTORNEY FOR THE BOARD

R. Williams, Counsel 


INTRODUCTION

The Veteran had active service from March 1988 to March 2008. 

This matter comes before the Board of Veterans' Appeals (Board) from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho.  The Veteran's claim is now being handled by the RO in Seattle, Washington.

In a February 2011 rating decision, the RO granted an increased evaluation of 40 percent for status post diskectomy L5-S1, with implanted nerve stimulator and associated degenerative disk disease, effective January 28, 2011.  Despite the grant of this increased evaluation, the Veteran has not been awarded the highest possible evaluation.  As a result, he is presumed to be seeking the maximum possible evaluation.  The issue remains on appeal, as the Veteran has not indicated satisfaction with the 40 percent rating. A.B. v. Brown, 6 Vet. App. 35 (1993).

This case was previously before the Board and the issues currently on appeal were remanded for additional development in August 2013.  The case has now been returned to the Board for further appellate action. 

In his November 2015 VA Form 9, the Veteran indicated he was appealing his back disability rating, and not the TDIU claim.  However, the Appellant's Post-Remand Brief submitted by the Veteran's representative in February 2016 indicated that the claim for entitlement to a TDIU was still on appeal, and he took no further action to withdraw the claim.  Therefore, the Board determines that this issue remains within its jurisdiction.  See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009).

This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems.

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


REMAND

The Veteran initially requested a hearing before the Board in the VA Form 9 received in February 2010.  However, he withdrew that request in March 2011.  Subsequent to the November 2015 supplemental statement of the case, the Veteran requested a Board video conference hearing.  Pursuant to 38 C.F.R. § 20.700, a hearing on appeal will be granted to an appellant who requests a hearing and is willing to appear in person.  38 U.S.C.A. § 7107 (West 2014).  As the Veteran has indicated he would like to appear at a video conference hearing, remand is necessary to schedule him for such a hearing.

Accordingly, the case is REMANDED for the following action:

Schedule the Veteran for a video conference hearing.  Then, process the case in accordance with established appellate procedure.

The appellant has the right to submit additional evidence and argument on the 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).



_________________________________________________
T. MAINELLI
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).