Citation Nr: 18145731 Decision Date: 10/30/18 Archive Date: 10/29/18 DOCKET NO. 09-50 702 DATE: October 30, 2018 REMANDED The issue of entitlement to an initial disability rating in excess of 10 percent prior to June 24, 2016, and in excess of 20 percent thereafter for a low back disability, to include the issue of entitlement to separate compensable ratings for lower extremity radiculopathy prior to June 24, 2016, is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1979 to September 1982. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland, which granted entitlement to service connection for lumbosacral spine degenerative disc disease with left lower extremity radiculopathy (“low back disability”) and assigned a 10 percent rating, effective from April 14, 2007. In March 2015, the Board remanded this matter for additional development. Thereafter, in an August 2016 rating decision, the RO increased the rating for the Veteran’s low back disability to 20 percent and granted separate, 10 percent ratings for bilateral lower extremity radiculopathy, all effective from June 24, 2016. As higher ratings are available and the Veteran is presumed to be seeking the maximum possible evaluation, the issue of entitlement to increased ratings before and after June 24, 2016, remains on appeal. A.B. v. Brown, 6 Vet. App. 35 (1993). In the March 2015 decision, the Board also took jurisdiction over 13 other issues for the limited purpose of remanding those issues to the RO for issuance of a statement of the case pursuant to Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). In July 2017, the RO issued a statement of the case, and, in August 2017, the Veteran filed a timely substantive appeal, which included a request to appear at a Board hearing. In light of the outstanding hearing request and in order to ensure that the Veteran is afforded full due process within the character of the VA claims process, the Board declines to take any further action on those issues. See 38 C.F.R. § 3.103; Gray v. McDonald, 27 Vet. App. 313, 327 (2015) (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). Entitlement to Increased Ratings for a Low Back Disability While the Board regrets the additional delay, another remand is required before the issue on appeal can be properly adjudicated. As noted above, in March 2015, the Board remanded this claim for in order to obtain outstanding treatment records and to provide the Veteran with a VA examination to determine the current severity of his service-connected low back disability. After completing these actions, and any other necessary development, the Board directed the AOJ to readjudicate the issue on appeal. If the claim was denied, the AOJ was instructed to issue a supplemental statement of the case (SSOC). As directed by the Board, the Veteran underwent a VA examination June 2016. However, the AOJ did not readjudicate the claim, nor did it issue a SSOC, as directed by the Board in its March 2015 remand instructions. The Board also notes that since the AOJ last adjudicated the Veteran’s claim in the November 2009 statement of the case, the Veteran underwent a May 2012 VA examination and additional VA and private treatment records were added to the claims file. With regard to outstanding records, the Board directed the AOJ to contact the Veteran and request that he provide information as to all treatment for his service-connected low back disability since 2013, including the names and addresses of all health care providers whose records had not already been provided to VA. As noted by the AOJ in June 2016 and August 2016 deferred rating decisions, this development was also not accomplished. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Id. Furthermore, the AOJ is required to issue an SSOC when, pursuant to a Board remand, it develops evidence or cures a procedural defect. 38 C.F.R. § 19.31 (c). The only exceptions allowed for by the regulation are if: (1) the only purpose of the remand is to assemble records previously considered by the AOJ and properly discussed in a prior statement of the case or SSOC, or (2) the Board specifies in the remand that an SSOC is not required. 38 C.F.R. § 19.31 (c). Neither exception applies here. Accordingly, on remand the AOJ must attempt to obtain outstanding treatment records, readjudicate the claim, and issue an SSOC after a review of all relevant evidence obtained since November 2009. The matter is REMANDED for the following action: 1. Obtain and associate with the Veteran’s claims file all outstanding VA treatment records from June 2016 to the present, documenting treatment for the conditions on appeal. 2. Send the Veteran a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable the AOJ to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. Specifically request that the Veteran furnish appropriate authorization to obtain private treatment records dated since 2013. If identified records are not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159 (e). 3. Following the completion of the foregoing, and any other development deemed necessary, the AOJ must readjudicate the Veteran’s claim taking into account all evidence received since the November 2009 statement of the case. If the benefits sought are not granted in full, supply the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Kipper, Associate Counsel