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 (CONTINUED ON NEXT PAGE) 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).