Citation Nr: 0003657 Decision Date: 02/11/00 Archive Date: 02/15/00 DOCKET NO. 98-14 867 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to an increased rating for residuals of a low back injury, currently evaluated as 40 percent disabling. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Steven D. Reiss, Counsel INTRODUCTION The veteran served on active duty from July 1944 to November 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which denied the veteran claims for an increased rating for the residuals of his low back disability. The veteran timely appealed this determination to the Board. In his statements and August 1998 hearing testimony, the veteran reported that he was unable to work due to his service-connected low back disability. In addition, in an undated private medical report, which was filed at the RO in September 1998, the veteran's treating physician indicated that the veteran was totally disabled due to back pain. The record thus raises the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disability. However, as the claim has not, to date, been adjudicated, it is referred to the RO for any and all appropriate action. REMAND In August 1998, the veteran and his spouse testified at a hearing conducted before a hearing officer at the RO. Thereafter, in his Substantive Appeal (on VA Form 9, Appeal to the Board), dated in September 1998, the veteran indicated that he did not wish to be afforded a hearing before a Member of the Board. However, in an October 1998 statement, which was filed at the RO that same month, the veteran stated that he wanted to appear for a hearing before a Member of the Board at the local VA office; he also indicated that he wished to again testify before a hearing officer at the RO. Thereafter, in a signed statement, which was dated in March 1999 and received at the RO that same month, the veteran indicated that he no longer wished to be afforded a Board hearing. The veteran's request for a Board hearing has thus been withdrawn. See 38 C.F.R. § 20.704(e) (1999). However, in signed statement dated in January 2000, the veteran reiterated his desire to appear at a second hearing held before a hearing officer at the RO. To date, the veteran has not been afforded the opportunity to appear at a second such hearing before RO personnel, and the claims file does not reflect that he has withdrawn his request for such a hearing. Accordingly, this case must be remanded. In addition, the Board notes that in support of his claim for a higher rating, the veteran has specifically argued that the disability is more appropriately rated under Diagnostic Code 5293 rather than under Diagnostic Code 5295. In addition, the veteran has specifically requested that an increased rating be considered on an extra-schedular basis. As such, on remand, the RO should again consider whether the disability should be evaluated under Diagnostic Code 5293 (see March 1999 Supplemental Statement of the Case (SSOC)) or any other diagnostic code, to include on an alternative basis, as well as whether the criteria for invoking the procedures for assignment of an extra-schedular evaluation under 38 C.F.R. § 3.321(b)(1) are met. Accordingly, the Board hereby REMANDS the case to the RO for the following actions: 1. The RO should obtain and associate with the claims file all outstanding records of treatment of the veteran. This should specifically include any outstanding records from the VA Medical Center in Asheville, North Carolina; Dr. H. Gene Washburn or any other examiner at the Boiling Springs Medical Associates; as well as from any other facility or source identified by the veteran. The aid of the veteran and his representative in securing such records, to include providing necessary authorization(s), should be enlisted, as needed. If any such records are not available, or the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file. 2. Then, the RO should contact the veteran and schedule him for a personal hearing before a hearing officer at the local VA office. 3. To help avoid future remand, the RO should ensure that all requested development has been completed (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 4. After completion of the foregoing requested development, and after completion of any other development deemed warranted by the record, the RO should readjudicate the veteran's claim for an increased rating for his low back disability on the basis of all pertinent evidence of record and legal authority. In doing so, the RO should address the applicability of all potentially applicable diagnostic codes in evaluating the veteran's disability, specifically to include Diagnostic Code 5293. The RO should also determine whether the case warrants referral to the Under Secretary for Benefits or to the Director of the Compensation and Pension Service, pursuant to 38 C.F.R. § 3.321(b), for assignment of an extra-schedular rating. The RO should provide adequate reasons and bases for its determinations, citing to all governing legal authority and precedent, and addressing all issues and concerns that are noted in this REMAND. 5. If the benefits sought by the veteran continue to be denied, he and his representative must be furnished a supplemental statement of the case and be given the opportunity to submit written or other argument in response thereto before his case is returned to the Board for further appellate consideration. The purpose of this REMAND is to accomplish additional development and adjudication and to ensure that all due process requirements are met; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The veteran need take no action until otherwise notified, but he may furnish additional evidence within the appropriate time period. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment by the RO. 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 (known as the United States Court of Veterans Appeals prior to March 1, 1999) for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1998) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the RO to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. JACQUELINE E. MONROE Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), 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) (1999).