Citation Nr: 1758084	
Decision Date: 12/14/17    Archive Date: 12/28/17

DOCKET NO.  07-39 004	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1.  Entitlement to an extraschedular rating for residuals of low back injury, currently rated 20 percent disabling.  

2.  Entitlement to an extraschedular rating for right lower extremity radiculopathy, currently rated 20 percent disabling.  

2.  Entitlement to a total disability rating based on individual unemployability (TDIU), to include on an extraschedular basis.  


REPRESENTATION

Appellant represented by:	Georgia Department of Veterans Services


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

C. Cooklin, Associate Counsel


INTRODUCTION

The Veteran served from June 1982 to May 1985.

This appeal comes before the Board of Veterans' Appeals (Board) from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia.  

In December 2005, the RO (implementing a Board decision) granted entitlement to service connection for low back injury residuals and assigned a 10 percent rating effective to the June 2003 claim date.  In May 2006, the RO increased the rating for the low back injury residuals to 20 percent, also effective June 2003, and granted a separate 10 percent rating for right lower extremity radiculopathy, effective December 2005.  The Veteran appealed the assigned initial ratings, and in October 2013, the Board increased the right lower extremity initial rating to 20 percent with an effective date of June 2003, denied an initial rating higher than 20 percent for low back residuals, and remanded the issues of extraschedular ratings and TDIU.  

The Veteran did not appeal the Board's decision to the Court of Appeals for Veterans Claims, and it is final.  Nonetheless, upon the RO implementing the Board's decision with a new RD, the Veteran filed another notice of disagreement with his schedular ratings.  While the issues listed as on the title page have returned for Board consideration, the Veteran's schedular rating claims are still pending at the RO level.  The Veteran perfected an appeal in November 2017; however, the appeal of those matters has not been certified to the Board.  As such, they are not within the Board's jurisdiction at this time.  

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

REMAND

Any determination or development made at the RO level regarding the Veteran's schedular claims could materially affect a determination made concerning the extraschedular and TDIU claims now before the Board.  As such, those matters are inextricably intertwined with the schedular claims now pending before the RO.   These matters must be remanded until finality is achieved on the pending schedular claims for the Board to consider the case.  Harris v. Derwinski, 1 Vet. App. 180 (1991).

Accordingly, the case is REMANDED for the following action:

Following completion of the RO's development in the claims now pending with regard to the lumbar spine and the leg radiculopathy, the RO should readjudicate all matters at the same time and, to the extent they are denied, certify them to the Board.

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).



_________________________________________________
R. FEINBERG
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) (2017).