Citation Nr: 1040232 Decision Date: 10/26/10 Archive Date: 11/01/10 DOCKET NO. 08-37 935 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for residuals of abdominal stabbing injury with scar. 2. Entitlement to an initial compensable evaluation for scar of the left thumb. 3. Entitlement to an initial compensable evaluation for scars of the left forearm. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD S. Layton, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from October 1990 to January 1998 with additional National Guard service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2008 and April 2009 rating decisions by the Waco, Texas Regional Office (RO) of the Department of Veterans Affairs (VA). In March 2010, the Board remanded the issue of entitlement to an initial evaluation in excess of 10 percent for residuals of abdominal stabbing injury with scar for further development. That same Board decision denied an increased rating for residuals of the left thumb fracture. Such residuals were orthopedic in nature, and are distinguished from the scar residuals listed on the title page of the instant decision. Because the Veteran has disagreed with the initial ratings assigned following the grants of service connection for residuals of abdominal stabbing injury with scar, scar of left thumb, and scars of left forearm, the Board characterized these claims in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability). Moreover, although the RO has granted a higher rating during the pendency of the appeal of 10 percent for the Veteran's residuals of abdominal stabbing injury with scar, inasmuch as higher ratings for this disability are available, and the Veteran is presumed to seek the maximum available benefit for a disability, the claim for a higher rating remains viable on appeal. See Fenderson, 12 Vet. App. at 126; AB v. Brown, 6 Vet. App. 35, 38 (1993). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Board notes that, subsequent to the appeal being certified to the Board, new evidence has been received without a waiver of RO jurisdiction. Such evidence includes an August 2010 statement from the Veteran specifically addressing the claim of entitlement to a higher evaluation for residuals of an abdominal stabbing injury, with a scar. Therefore, such evidence must first be reviewed by the RO before the Board may proceed with appellate consideration of the case. Furthermore, it is observed that in an April 2009 rating decision, the RO granted service connection for scar of left thumb and scars of left forearm, each with a noncompensable rating, effective December 9, 2008. An August 2009 statement is reasonably construed as expressing dissatisfaction with the noncompensable ratings granted in that determination. The evidence of record does not reflect that a statement of the case has been issued pursuant to 38 C.F.R. § 19.26 in response to the August 2009 notice of disagreement with the RO's decision to establish noncompensable evaluations for scar of left thumb and scars of left forearm. In the past, the Board has referred such matters back to the RO for appropriate action. However, the Court has indicated that the proper action is to REMAND the issue to the RO for appropriate action. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999) ("Thus, the next step was for the RO to issue an SOC on the denial of the ... claim, and the Board should have remanded that issue to the RO, not referred it there, for issuance of that SOC.") Accordingly, the case is REMANDED for the following action: 1. Review the record, to include all evidence received subsequent to the last supplemental statement of the case, and consider whether a higher evaluation is warranted for the Veteran's residuals of abdominal stabbing injury with scar. If the claim remains denied, the appellant and his representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, as appropriate. 2. Take appropriate action, including issuance of a statement of the case, on the appeal initiated by the Veteran from the April 2009 rating decision that granted service connection for scar of left thumb and scars of left forearm, each with a noncompensable rating. The Veteran and his representative should be clearly advised of the need to file a substantive appeal if he wishes to complete an appeal from that determination. If an appeal is perfected, then the case should be returned to the Board for further appellate consideration, as appropriate. 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. 2009). _________________________________________________ ERIC S. LEBOFF Acting 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) (2010).