Citation Nr: 1613546 Decision Date: 04/04/16 Archive Date: 04/13/16 DOCKET NO. 10-01 111 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to restoration of a 40 percent rating for status post lumbar spine strain. 2. Entitlement to an increased rating for status post-surgery lumbar intervertebral disc syndrome (IVDS) and spinal stenosis, rated at 0 percent disabling prior to April 1, 2013, at 10 percent disabling as of April 1, 2013 and at 20 percent disabling post November 12, 2013. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. L. Burroughs, Associate Counsel INTRODUCTION The Veteran served on active duty from February 2000 to February 2004, and from October 2004 to August 2005. These matters come before the Board of Veterans' Appeals (Board) on appeal from October 2008 and May 2009 rating decisions from the Department of Veterans Affairs (VA) Regional Offices (RO) in Winston-Salem, North Carolina and Los Angeles, California, respectively. Jurisdiction now lies with the RO in Roanoke, Virginia. The Board previously remanded this case in September 2013. The remand characterized the issue on appeal as limited to the increased rating matter. On further review of the record, the Board observes that this appeal originates from the Veteran's disagreement with the reduction in the evaluation assigned her rating and the denial of an increased rating for the same disorder. Accordingly, the Board has recharacterized the issues on appeal to more accurately reflect the matters before the Board. In effect, the increased rating and restoration issues are part and parcel of the same legal question concerning the proper rating assignable the low back disability at issue. Finally, the Board in its September 2013 Remand referred the matter of entitlement to a temporary total rating under 38 C.F.R. § 4.30 following back surgery to the Agency of Original Jurisdiction (AOJ). At the time, the issue had been raised by the record but had not yet been adjudicated by the AOJ. To date, the record does not reflect that this matter has been adjudicated by the AOJ. Therefore, it is again referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND The record reflects that in an October 2008 rating decision, the RO reduced the disability rating for the Veteran's status post lumbar spine strain from 40 percent disabling to noncompensable, effective November 1, 2008. In a January 2009 report of contact, the Veteran expressed both disagreement with the reduction of her rating and her desire for her payment to be restored. The RO treated this communication solely as a claim for increased rating. In the May 2009 rating decision, the RO denied the claim for an increase. In her notice of disagreement and substantive appeal, the Veteran continued to argue that the reduction of her disability rating was erroneously made. Notably, neither the October 2009 statement of the case nor the May 2013 supplemental statement of the case provided the Veteran with the pertinent law or regulations as to rating reductions. Inasmuch as the rating reduction matter is part of the current appeal, VA is obligated to provide the Veteran with a summary of the applicable laws and regulations. 38 C.F.R. § 19.29(b); 38 C.F.R. § 19.31(b)(2). Accordingly, the Board will remand the case for the issuance of a responsive supplemental statement of the case. As to the Veteran's claim for entitlement to an increased rating, the Board finds that this claim is clearly inextricably intertwined. Thus a decision on the claim for increase rating at this time would be premature. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with a supplemental statement of the case as to the issue of the propriety of the rating reduction for status post lumbar spine strain, from 40 percent to noncompensable, effective November 1, 2008. The supplemental statement of the case should include the pertinent law and regulations pertaining to rating reductions, including 38 C.F.R. §§ 3.105 and 3.344. The Veteran and her representative should be afforded an appropriate period of time in which to respond. 2. Thereafter, and undertaking any further indicated evidentiary or procedural development affecting either issue on appeal, the case should be returned to the Board, if otherwise in order. 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 case 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). _________________________________________________ Thomas H. O'Shay Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board 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).