Citation Nr: 0806691
Date: 02/27/08 Archive Date: 03/06/08
DOCKET NO. 04-39 898 )
On appeal from the Department of Veterans Affairs Regional Office in Winston-
Entitlement to service connection for spondylolisthesis and degenerative disc disease, status post-lumbar fusion L4-S1.
WITNESS AT HEARING ON APPEAL
ATTORNEY FOR THE BOARD
W. R. Harryman, Counsel
The appellant served on active duty from November 1983 to August
1989. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department
of Veterans Affairs (VA) Regional Office (RO) in
Winston-Salem, North Carolina.
A hearing before the Board was held at the RO in May 2005. The undersigned Veterans Law Judge presided.
The record previously did not show that the appellant
had been provided with notice that complies with Dingess v.
Nicholson, 19 Vet. App. 473 (2006).
In addition, the record shows that, in November
2002, the appellant sought medication for his back from the
VA Medical Center in Salisbury, North Carolina.
During his interview, he mentioned that he was applying
for Social Security disability compensation for his back.
In addition, a January 1991 office note by a physician
in a neurological surgery practice discussed the appellant's
back condition and mentioned that he had filed a claim for Worker's
Compensation. The appellant also left his
job with the United States Postal Service because of his back
disability. There are no records in the claims
file from any of these claims about his back disability.
Since those records may contain relevant evidence of
the onset and continuity of the appellant's back condition,
further development is needed to
obtain those records.
Finally, the transcript of the veteran's May 2005 hearing before the Board appears to be incomplete.
In January 2007, the Board remanded the case for several
reasons: 1) to provide the appellant with notice that complies with Dingess v. Nicholson, 19 Vet. App. 473(2006); 2) to assist him in obtaining evidence relating to the various claims filed by him pertaining to his back condition, including any disability claims with the Social Security Administration and the Postal Service, and worker's compensation
claims; and 3) to see if the appellant wants another Board hearing
on the basis of the incomplete transcript. Although
the VA Appeals Management Center (AMC) wrote him in February
2007, providing him with Dingess-compliant notice, the record
does not reflect that an effort was made to assist him in obtaining
additional evidence, as
directed in the Board's remand. Nor does the record indicate that the appellant was offered an opportunity for another Board hearing.
The Board would point out that the United States Court of Appeals for Veterans Claims has held that "where remand orders of the Board or this Court are not complied with, the Board itself errs in failing to insure compliance." Stegall
v. West, 11 Vet. App. 268 (1998).
Accordingly, inasmuch as a significant portion of the
Board's January 2007 remand was not completed by the AMC,
the appellant's appeal is not yet ready for final appellate
Accordingly, the case is REMANDED to the RO via the AMC for the following actions:
1. Assist the appellant in obtaining evidence
relating to the various claims filed by the appellant pertaining
to his back condition, including any disability claims with the Social Security Administration and the United States Postal Service,
and Worker's Compensation claims. Associate
any evidence obtained with the claims file.
2. Contact the appellant
to see if he wants to request another hearing before the Board on the basis of the incomplete transcript. If he requests one, a hearing should be scheduled.
3. Thereafter, readjudicate the claim. If the benefit sought is denied, issue the
appellant a supplemental statement of the case that considers
all the evidence
submitted after the January 2007 supplemental statement
of the case. After the appellant has been
given an opportunity to respond, the claims file should be returned to the Board for further appellate review.
The appellant 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.A. §§ 5109B, 7112 (West Supp. 2007).
Veterans Law Judge, Board of Veterans' Appeals
U.S.C.A. § 7252 (West 2002), 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
C.F.R. § 20.1100(b) (2007).
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