Citation Nr: 1801652 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-12 896 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an initial evaluation greater than 20 percent before May 18, 2010, and to a rating greater than 20 percent thereafter, for sciatica of the right leg (also claimed as radiculopathy). 2. Entitlement to an initial evaluation greater than 20 percent before October 19, 2011, and to a rating greater than 20 percent thereafter, for sciatica of the left leg (also claimed as radiculopathy). 3. Entitlement to an initial evaluation greater than 10 percent before May 18, 2010, and to a rating greater than 10 percent thereafter, for intervertebral disc syndrome (claimed as back). 4. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance or housebound status. REPRESENTATION Veteran represented by: Adam Neidenberg, Attorney ATTORNEY FOR THE BOARD N. Stevens, Associate Counsel INTRODUCTION The Veteran had active service from July 1978 to July 1981, with subsequent periods of unverified service with the Army Reserves. These matters come before the Board of Veterans' Appeals (Board) on appeal from December 2012 and June 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The December 2012 rating decision granted service connection and awarded an initial evaluation for sciatica of the right leg, sciatica of the left leg and intervertebral disc syndrome. The June 2014 rating decision denied special monthly compensation (SMC) based on the need for aid and attendance or housebound status. The Veteran was scheduled for an informal Decision Review Officer (DRO) telephone conference in March 2014. However, in correspondence dated in June 2014, the Veteran's attorney indicated that he waived his right to the conference and had submitted a brief in lieu of. Subsequently, in January 2016, the Veteran had an informal DRO telephone conference. The DRO agreed to keep the record open for an additional 30 days to enable the Veteran to submit additional evidence. The Veteran was scheduled to testify at a Board hearing in March 2017. However, the Veteran through his attorney canceled per a March 2017 letter, and indicated that he wished not to reschedule. Accordingly, the Board considers the Veteran's request for a hearing to be withdrawn. 38 C.F.R. § 20.704 (d), (e) (2017). Additionally, in March 2017, the Veteran's attorney requested that the record is kept open for an additional 60 days to submit additional evidence. In correspondence dated in May, June and July 2017, the Veteran's attorney requested that the record is kept open for an additional 30 days. The Board notes that the Veteran was previously represented by private counsel, who withdrew representation in a letter dated in February 2017. The attorney noted that the Veteran hired another attorney for representation before the Department of Veteran Affairs and the Board of Veteran 'Appeals. In October 2017, the Veteran provided the forms appointing current counsel (listed above) as the attorney of record. The Board notes that in March 2017, the Veteran filed a VA Form 9, perfecting his appeal regarding the issues of service connection for right hip trochanteric bursitis, (claimed as right hip/leg condition), service connection for left hip degenerative joint disease (also claimed as left hip/leg condition), service connection for hearing loss, service connection for tinnitus, service connection for prostate cancer and entitlement to individual unemployability. At present, these issues have not been certified to the Board for appellate disposition. Certification is used for administrative purposes and does not serve to either confer or deprive the Board of jurisdiction over an issue. 38 C.F.R. § 19.35 (2017). However, when an appeal is certified to the Board for appellate review and the record is transferred to the Board, the Veteran and his or her representative, if any, will be notified in writing of the certification and transfer and of the time limit for requesting a change in representation and for submitting additional evidence. 38 C.F.R. §§ 19.36, 20.1304(a) (2017). As the required notifications have not been sent in regard to the VA Form 9 filed in March 2017, the Board declines to take any further action on those issues at this time. This delay is needed to ensure that the Veteran is afforded full due process in the matter. 38 C.F.R. § 3.103 (2015); Gray v. McDonald, 27 Vet. App. 313, 327 (2017) (due process protections apply to disability compensation proceedings before the Board) (citing Cushman v. Shinseki, 576 F.3d 1290 (Fed. Cir. 2009)); see also Carter v. McDonald, 794 F.3d 1342, 1346 (Fed. Cir. 2015). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND VA's duty to assist includes providing a new medical examination when a Veteran asserts or provides evidence that a disability has worsened and the available evidence is too old for an adequate evaluation of the current condition. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993). Examinations will be requested whenever VA determines, as in this case, that there is a need to determine the current severity of a disability. The Board notes that the Veteran's most recent VA examinations were in May 2011 and December 2011, over six years ago. In a February 2016 statement, the Veteran asserts that his back condition, as well as his sciatica, have significantly worsened. Regarding his back, the Veteran contends that he has trouble getting in and out of bed because of the frequent "lock-ups," stiffness, flare-ups, spasms and increased pain in his back. The Veteran further contends that he experiences spasms in the legs and increased pain as well as leg tiredness all day. A current examination is necessary to assess his current symptoms so that that the Board may make an informed decision. With regard to the Veteran's SMC claim, the outcome of the increased rating claims being remanded may impact the merits of his SMC claim. Therefore, it is inextricably intertwined and remanded with them. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); see also Tyrues v. Shinseki, 23 Vet. App. 166, 178 (2009). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for VA examinations with appropriate clinicians to determine the current severity of the Veteran's intervertebral disc syndrome and sciatica of the legs. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner should test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing for the thoracolumbar spine. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should explain why. The examiner must provide all findings, along with a complete rationale for any opinions provided. 2. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. The Veteran 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. §§ 5109B, 7112 (2012). _________________________________________________ D. Martz Ames Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 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).