Citation Nr: 18151210 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 16-42 333 DATE: November 16, 2018 REMANDED Entitlement to service connection for tinnitus is remanded. Entitlement to an initial rating in excess of 10 percent disabling for L5-S1 degenerative disc disease with foraminal stenosis (claimed as back injury, low back condition, and low back strain) is remanded. Entitlement to an initial rating in excess of 10 percent disabling for radiculopathy, right lower extremity (also claimed as nerve damage) is remanded. REASONS FOR REMAND The Veteran served on active duty from June 2008 to February 2012. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a December 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2016, the Veteran filed a Form 9 requesting a videoconference hearing. Subsequently, at an informal hearing with his representative in January 2017, the hearing was either postponed or canceled in order to afford the Veteran VA examinations for his current disability issues. The remand directives will further address the videoconference hearing. In February 2017, VA received a communication from the Veteran's attorney, Ms. Michelle Wolf, indicating that she was withdrawing as the attorney of record for the Veteran. See 02/27/2017, Third Party Correspondence. This was after the case had been certified to the Board. See 09/29/2016 Form 8. The attorney did not show good cause for her withdrawal. See 38 C.F.R. § 20.608(b)(2). Accordingly, the Board concludes that Ms. Wolf is the Veteran's representative just for the purpose of this decision. Id.; see also Perez v. Shinseki, 25 Vet. App. 190, 194-95 (2012) (concluding that when the Veteran submitted a request to change representation more than 90 days after his appeal was certified to the Board, he did not avail himself of the "good cause" provision contained in 38 C.F.R. § 20.1304(b); therefore, the Board acted correctly in declining to recognize a VSO as his representative for purposes of the Board's decision). 1. Entitlement to service connection for tinnitus. 2. Entitlement to an initial rating in excess of 10 percent disabling for L5-S1 degenerative disc disease. 3. Entitlement to an initial rating in excess of 10 percent disabling for radiculopathy, right lower extremity. The evidence of record contains several discrepancies that warrant remand in order to provide the Veteran with appropriate due process prior to the adjudication of his claim. As noted above, in February 2017, the Veteran’s accredited representative withdrew her representation. The withdrawal occurred after the Veteran failed to report for VA examinations scheduled during an informal conference. A statement of the case (SOC) dated March 2017, states the RO was notified of the Veteran’s failure to report on January 2017. However, the notification is not associated with the claims file. Furthermore, it appears prior to withdrawal of representation by the accredited representative, there was confusion as to which claims were being appealed on the Veteran’s behalf. The accredited representative submitted a notice of disagreement (NOD) in June 2016, listing the issues of lumbar strain, right lower extremity radiculopathy and tinnitus. However, the accompanying letter stated the NOD was disagreeing with a June 2015 RO rating decision and an attachment with the NOD referenced entitlement to vocational rehabilitation benefits. Indeed, the June 2015 rating decision contained three issues related to vocational rehabilitation and not the issues currently on appeal. The RO in a VA Memorandum dated June 2016, presumed that the June 2016 NOD was filed in response to December 2015 and February 2016, rating decisions which addressed the issues of tinnitus, L5-S1 degenerative disc disease, and right lower extremity radiculopathy, which are currently on appeal. The RO has certified these issues to the Board and there was a videoconference hearing scheduled for January 2017, which was cancelled (or postpone) in order to afford the Veteran additional VA examinations. The record contains no evidence that the RO has closed the appeals; therefore, the Board will adjudicate the appeals following remand. Gonzalez-Morales v. Principi, 16 Vet. App. 556, 557-58 (2003) (stating that the Board must accept appeals even if the substantive appeal is untimely, when there is no evidence that the RO closed the appeal and it treated the appeal as timely). Furthermore, the Board notes the Veteran was displaced following a hurricane in October 2014 and there is some question as to his current state regarding homelessness or transitory status. As such, remand is warranted in order to clarify the due process issues addressed above. In addition, as referenced above, the record does not specifically note whether the Board videoconference that was scheduled for January 2017 was postponed pending VA examinations or cancelled. As such, the Board finds that clarification with the Veteran is necessary especially in light of his representative withdrawing her representation, which will be effective upon the issuance of this appellate document. Additionally, updated VA treatment records should be associated with the record on remand. See Sullivan v. McDonald, 815 F.3d 786, 792 (Fed. Cir. 2016) (finding that because § 3.159(c)(3) expanded the VA’s duty to assist to include obtaining VA medical records without consideration of their relevance.)   The matters are REMANDED for the following actions: 1. Update/Obtain VA treatment records from June 2015 to the present. Document all requests for information as well as responses in the claims file. 2. Associate the January 30, 2017, notification that the Veteran failed to show or report to scheduled VA examinations. 3. Contact the Veteran to determine if he would like to reschedule his videoconference hearing and to determine if he has acquired new representation. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. M. Williams, Associate Counsel