Citation Nr: 0813730	
Decision Date: 04/25/08    Archive Date: 05/01/08

DOCKET NO.  05-30 047	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Fargo, 
North Dakota


THE ISSUES

1.  Entitlement to an effective date earlier than May 25, 
2004, for an increased rating of 10 percent rating for a 
facial scar.

2.  Entitlement to an effective date earlier than May 25, 
2004, for an increased rating of 10 percent for residuals of 
traumatic rupture of the sigmoid mesentery with laceration of 
the sigmoid colon and hematoma of the small bowel mesentery.

3.  Entitlement to a compensable rating for a facial scar 
during the period from February 3, 1993, to April 7, 1993.

4.  Entitlement to a compensable rating for residuals of 
traumatic rupture of the sigmoid mesentery with laceration of 
the sigmoid colon and hematoma of the small bowel mesentery 
during the period from February 3, 1993, to April 7, 1993.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of 
the United States

ATTORNEY FOR THE BOARD

Daniel Markey, Associate Counsel


INTRODUCTION

The veteran served on active duty from June 1966 to June 
1968.

This appeal to the Board of Veterans' Appeals (Board) is from 
September 2004 and April 2005 rating decisions of the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Fargo, North Dakota.


REMAND

The Board notes that the Veterans Claims Assistance Act of 
2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 
5103, 5103A (West 2002 & Supp. 2007), and the pertinent 
implementing regulation, codified at 38 C.F.R. § 3.159 
(2007), provide that the VA will assist a claimant in 
obtaining evidence necessary to substantiate a claim but is 
not required to provide assistance to a claimant if there is 
no reasonable possibility that such assistance would aid in 
substantiating the claim. They also require VA to notify the 
claimant and the claimant's representative, if any, of any 
information, and any medical or lay evidence, not previously 
provided to the Secretary that is necessary to substantiate 
the claim.  As part of the notice, VA is to specifically 
inform the claimant and the claimant's representative, if 
any, of which portion, if any, of the evidence is to be 
provided by the claimant and which part, if any, VA will 
attempt to obtain on behalf of the claimant.

In the case at hand, the RO has not informed the veteran of 
the legal criteria governing the assignment of effective 
dates for increased ratings, nor has it informed him of the 
evidence necessary to substantiate his claims. 

The Board further notes that in an April 2005 rating 
decision, the RO granted an earlier effective date of 
February 3, 1993, for service connection for the disabilities 
currently at issue.  In this decision, the RO rated both 
disabilities as noncompensably disabling during the period 
from February 3, 1993, to April 7, 1993.  This is the initial 
disability rating assigned for each disability for this 
period of time.  In May 2005, the veteran submitted a notice 
of disagreement with the decision assigning non compensable 
ratings during this period of time.  The veteran has not been 
provided a Statement of the Case that addresses these initial 
evaluation issues.  Because the notice of disagreement placed 
the issues in appellate status, the matters must be remanded 
for the originating agency to issue a statement of the case.  
See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999).  

Accordingly, this case is REMANDED to the RO or the Appeals 
Management Center (AMC) in Washington, D.C., for the 
following actions:

1.  The AMC or the RO should issue a 
Statement of the Case on the issues of 
entitlement to a compensable initial 
rating for a facial scar during the 
period from February 3, 1993, to April 7, 
1993, and entitlement to an initial 
compensable rating for residuals of 
traumatic rupture of the sigmoid 
mesentery with laceration of the sigmoid 
colon and hematoma of the small bowel 
mesentery during the period from February 
3, 1993, to April 7, 1993.  It should 
also inform the veteran of the 
requirements to perfect an appeal with 
respect to these new issues.  If the 
veteran perfects an appeal with respect 
to either issue, the RO or the AMC should 
ensure that all indicated development is 
completed before the case is returned to 
the Board.

2.  With respect to the earlier effective 
date issues currently on appeal, the AMC 
or the RO should send a letter to the 
veteran and his representative providing 
the notice required under 38 U.S.C.A. § 
5103(a) and 38 C.F.R. § 3.400.

3.  The AMC or the RO should then 
undertake appropriate development to 
obtain any pertinent evidence identified 
but not provided by the veteran.  If it 
is unable to obtain any such evidence, it 
should so inform the veteran and his 
representative and request them to 
provide the outstanding evidence.

4.  The AMC or the RO should also 
undertake any other development it 
determines to be warranted.

5.  Then, the AMC or the RO should 
readjudicate the earlier effective date 
issues on appeal.  If the benefits sought 
on appeal are not granted to the 
veteran's satisfaction, the veteran and 
his representative should be furnished a 
Supplemental Statement of the Case and 
provided an appropriate opportunity to 
respond.

Thereafter, the case should be returned to the Board, if in 
order.  The Board intimates no opinion as to the ultimate 
outcome in this case.  The veteran need take no action until 
he is otherwise notified.

The appellant has the right to submit additional evidence and 
argument on the matters the Board has remanded.  See 
Kutscherousky v. West, 12 Vet. App. 369 (1999).

This case 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 

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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).



_________________________________________________
Shane A. Durkin
Veterans Law Judge, Board of Veterans' Appeals

Under 38 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 appeal.  
38 C.F.R. § 20.1100(b) (2006).