Citation Nr: 1759613 Decision Date: 12/21/17 Archive Date: 12/28/17 DOCKET NO. 12-34 710 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent prior to June 10, 2014, in excess of 20 percent from June 10, 2014 to December 28, 2014 and in excess of 30 percent thereafter for cervical spine degenerative joint disease with chronic strain. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Robert A. Friedman, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. Talamantes, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1971 to October 1975 and from August 1991 to April 1996 with periods of Army National Guard service. The matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs Regional Office (RO) in Seattle, Washington. In the December 2009 rating decision the RO found that there had been clear and unmistakable error in a December 1975 rating decision that denied service connection for a cervical spine disorder. The RO reversed and revised the prior decision to grant service connection for cervical spine degenerative joint disease with chronic strain and assigned an initial 10 percent rating from October 14, 1975, the day following separation from service, to August 13, 1991 and from April 12, 1996. The Veteran filed a timely notice of disagreement with the initial rating assigned. In July 2014, the Board remanded the claim to the agency of original jurisdiction (AOJ) to afford the Veteran a videoconference hearing. In September 2014, the Veteran testified during a videoconference hearing before a Veterans Law Judge. A transcript of that hearing has been associated with the file. In November 2015 the Board remanded the matter for additional development to include obtaining Social Security Administration (SSA) records, and directed the RO to adjudicate the issue of TDIU. In September 2016, the RO increased the disability rating for the spine disability, assigning a 20 percent rating with an effective date of June 10, 2014 and a 30 percent rating with an effective date of December 29, 2014. The TDIU issue was denied, and after a supplemental statement of the case was issued, the matter was returned to the Board. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Under 38 C.F.R. §20.1304, the Veteran can request a personal hearing if it is within 90 days following notification of certification to the Board, or thereafter, if good cause is shown. Here, the appeal was certified in December 2013 and the Veteran was notified of this in May 2014. As stated in the Introduction, the Veteran testified during a videoconference hearing in September 201,4 with respect to his cervical spine disability, at which time he was represented by a service organization. In March 2017, the Veteran revoked his consent to have this organization represent him and submitted a VA Form 21-22, confirming his current attorney as his representative. In April 2017 the Veteran's representative requested a decision review officer (DRO) hearing and in November 2017 the Veteran's representative requested a videoconference before the Board. In an electronic mail dated December 2017 the Veteran's representative requested that the issues on appeal be sent back to the AOJ to afford the Veteran a DRO hearing. The representative stated that the issues on appeal together with a third issue he is pursuing are inextricably intertwined and therefore should be adjudicated together. The Veteran has been afforded a Board hearing for his spine disability. However, since that hearing the Veteran has changed his representative, and the TDIU claim was further developed. In these circumstances, the Board finds that good cause has been presented for the requested DRO hearing. See 38 C.F.R. § 20.704(c) (2017). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a DRO hearing at the earliest opportunity, following the usual procedures. He and his attorney should be given advance notice of the date, time, and location of the hearing. A copy of the hearing notice letter should be placed in the claims file. If, for whatever reason, the Veteran changes his mind and withdraws his request for a hearing or does not appear for the hearing on the date scheduled, this should also be documented in the claims file. 2. After the hearing is conducted and any resulting action indicated has been accomplished, or in the event the Veteran withdraws his request for a hearing, or fails to appear at the scheduled hearing, the case should be returned to the Board. The Veteran 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. §§ 5109B, 7112 (2012). _________________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (2012), 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).