Citation Nr: 1308443 Decision Date: 03/13/13 Archive Date: 03/20/13 DOCKET NO. 07-26 586 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for a sleep disorder (claimed as insomnia). 2. Entitlement to a rating in excess of 10 percent for cervical spine disability. REPRESENTATION Appellant represented by: Nicholas Parr (from the Law Offices of Karl Kazmierczak), Attorney WITNESS AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD K. Curameng, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from July 1988 to March 2000. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision of the Baltimore, Maryland Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for a cervical spine disability, rated 10 percent, effective April 15, 2005. In July 2007, a Decision Review Officer (DRO) decision (by the Indianapolis, Indiana RO) granted an earlier effective date (of December 16, 2003) for the award of service connection for the cervical spine disability. An April 2010 rating decision by the Philadelphia, Pennsylvania RO (which now has jurisdiction of the case) denied service connection for a sleep disorder (claimed as insomnia). In November 2012, a Travel Board hearing was held before the undersigned; a transcript of the hearing is associated with the Veteran's claims file. At the Veteran's request the record was held in abeyance 30 days for the submission of additional evidence. To date (more than 4 months later), no additional evidence has been received. The Veteran had also filed a notice of disagreement with a number of additional (to include the denial of service connection for a sleep disorder) determinations made in the April 2010 rating decision. After a statement of the case (SOC) was issued in those matters in June 2011, he did not perfect his appeal with a timely substantive appeal. Accordingly, those matters are not before on appeal. The appeal is REMANDED to the RO. VA will notify the appellant if further action on his part is required. REMAND Regarding the service connection claim, under 38 U.S.C.A. § 7105(a), an appeal to the Board must be initiated by a notice of disagreement (NOD) and completed by a substantive appeal after a SOC is furnished to the appellant. In essence, the following sequence is required: There must be a decision by the RO, the claimant must express timely disagreement with the decision (by filing an NOD within one year of the date of mailing of notice of the RO decision), VA must respond by explaining the basis of the decision to the claimant (in the form of a SOC), and finally, the appellant, after receiving adequate notice of the basis of the decision, must complete the process by stating his argument in a timely-filed substantive appeal. See 38 C.F.R. §§ 20.200, 20.201, 20.202, and 20.203. Here, an April 2010 rating decision denied service connection for insomnia. In June 2010, the Veteran filed a timely NOD expressing disagreement with that decision. The SOC issued by the RO in June 2011 addressed a number of other claims denied by the April 2010 rating decision (that were encompassed in a timely NOD), but did not address the matter of service connection for a sleep disorder. In fact, there has not been a SOC issued in such matter. Under Manlincon v. West, 12 Vet. App. 238, 240 (1999), when this occurs, the Board must remand the case and instruct the RO that the issue remains pending in appellate status (see 38 C.F.R. § 3.160(c)) and requires further action. See 38 U.S.C.A. § 7105; 38 C.F.R. § 19.26. The Veteran is advised that his claim of entitlement to service connection for insomnia is not before the Board at this time, and will be before the Board only if he timely files a substantive appeal after an SOC is issued. Regarding the rating for a cervical spine disability, a review the record found that while notice provisions of the VCAA appear satisfied, further development is needed for VA to satisfy its duty to assist the Veteran in the development of such claims. Specifically, an August 2012 VA examination found some limitation of motion, but no neuropathy. At the November 2012 hearing, the Veteran and his wife testified that his cervical spine disability is manifested by muscle spasms, suggesting that the disability increased in severity since (or was manifested by symptoms not noted on) the VA examination. Because muscle spasms are capable of lay observation, they are competent to report such symptoms. Notably, muscle spasms can provide a basis for assigning the next higher (20 percent) rating. Furthermore, the most recent treatment records associated with the record (claims file or Virtual VA) are dated in September 2012 (and predate the November 2012 hearing). The Veteran has indicated he receives ongoing treatment for the cervical spine at the VA medical center in Lebanon, Pennsylvania. Any outstanding VA treatment records are constructively of record, and as they would be pertinent in the matter at hand, must be secured. Finally, the Veteran was examined by VA to evaluate his cervical spine disability fairly recently. However, if any additional records received suggest an increase in severity of the disability since the September 2012 VA examination, a contemporaneous VA examination would become necessary. Accordingly, the case is REMANDED for the following: 1. The RO should review the record and issue an appropriate SOC addressing the matter of service connection for a sleep disorder. The Veteran must be advised of the time afforded for filing a substantive appeal, and that, in order for the Board to have jurisdiction in this matter, he must submit a timely substantive appeal. If he timely perfects an appeal in this matter, it should be returned to the Board for appellate consideration, if otherwise in order. 2. The RO should secure for the record complete copies of all reports of VA evaluation and/or treatment the Veteran has received for his cervical spine disability (specifically including at the Lebanon, Pennsylvania VA medical center) since September 18, 2012. 3. If the records received pursuant to the request above suggest a worsening of symptoms of the cervical spine disability, the RO should arrange for an orthopedic examination of the Veteran to determine the severity of his service-connected cervical spine disability. In such case the record must be reviewed by the examiner in conjunction with the examination. Ranges of motion studies must be conducted (and should include active and passive ranges of motion, in as well as notation of any further limitations due to pain or on use. The examiner must also note whether or not there is muscle spasm (and if so, its degree of severity), and whether or not there are any neurological manifestations (and if so, their nature, severity, and associated impairment of function). It must also be noted whether or not the disability is/has been manifested by incapacitating episodes (and if so their duration and frequency). The examiner should explain the rationale for all opinions. 4. The RO should then review the record and re-adjudicate the claim for increase. If it remains denied, the RO should issue an appropriate supplemental SOC (SSOC) and afford the Veteran and his attorney the opportunity to respond. If findings at any point during the period for consideration are deemed to support an increased rating, but such increase is not granted (e.g. because the increase was due to an intercurrent injury), such should be clearly explained in the SSOC. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matter(s) the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. _________________________________________________ George R. Senyk 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) (2012).