Citation Nr: 1819086 Decision Date: 03/30/18 Archive Date: 04/05/18 DOCKET NO. 07-17 279 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an initial evaluation in excess of 10 percent for lumbar spine arthritis with intervertebral disc syndrome status post L4-5 hemilaminotomy and microdiskectomy (hereinafter a "lumbar spine disability"). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Journet Shaw, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from June 1997 to September 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, which granted service connection for a lumbar spine disability and assigned a 10 percent evaluation, effective September 14, 2004. The Veteran appealed for a higher initial evaluation. The Veteran testified before a Veterans Law Judge (VLJ) at a February 2014 videoconference hearing. A transcript of this hearing is of record. In January 2018, the Veteran was notified that the VLJ who held her February 2014 hearing was no longer employed by the Board. The Veteran declined the opportunity for another hearing. 38 C.F.R. § 20.717 (2017). In June 2014, the Board dismissed the claims for service connection for bilateral carpal tunnel syndrome and for a higher initial evaluation for generalized anxiety disorder; and remanded the claims for higher initial evaluations for a lumbar spine disability and right lower extremity sciatic radiculopathy for additional development. In particular, the Board instructed the RO to issue a statement of the case (SOC) for the Veteran's claim for a higher initial evaluation for right lower extremity radiculopathy. A January 2015 SOC was issued; however, the Board observes that no VA Form 9 was filed to perfect her appeal. See 38 C.F.R. § 20.202 (2017). Accordingly, the claim for a higher initial evaluation for right lower extremity radiculopathy is not currently on appeal before the Board. As discussed below, there has not been substantial compliance with the June 2014 remand instructions with respect to the higher initial evaluation claim for a lumbar spine disability, so the matter must be remanded. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Unfortunately, a remand is required in this case for the issue on appeal. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the claim so that the Veteran is afforded every possible consideration. In its June 2014 remand, the Board instructed the AOJ to provide the Veteran with a VA examination to evaluate the current severity of her service-connected lumbar spine disability. The Veteran underwent a VA examination for her lumbar spine disability in March 2015. However, the AOJ did not prepare a supplemental statement of the case (SSOC) considering this newly received VA-generated evidence prior to returning the appeal to the Board, which does not comply with the Board's remand instructions. Furthermore, since the most recent SSOC was issued in November 2013, the Veteran has also submitted additional private treatment records concerning her lumbar spine disability, but she did not waive AOJ consideration of this evidence. As the AOJ did not comply with the Board's June 2014 remand directives and new evidence has been received by VA since the last SSOC without a waiver, another remand is required for issuance of an SSOC that reflects consideration of the March 2015 VA examination and the private treatment records received in March 2015 and September 2015. See Stegall v. West, 11 Vet. App. 268 (1998); 38 C.F.R. § 20.1304(c) (2017). Accordingly, the case is REMANDED for the following action: Readjudicate the claim for a higher initial evaluation for lumbar spine arthritis with intervertebral disc syndrome status post L4-5 hemilaminotomy and microdiskectomy with consideration of the additional evidence associated with the claims file since the November 2013 SSOC, including the March 2015 VA examination and private treatment records received in March 2015 and September 2015. If the benefit sought on appeal remains denied, the Veteran should be provided an SSOC. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ LESLEY A. REIN 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).