Citation Nr: 1322807 Decision Date: 07/17/13 Archive Date: 07/24/13 DOCKET NO. 00-25 086 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a disability rating in excess of 30 percent for migraine headaches. 2. Entitlement to a disability rating in excess of 10 percent for degenerative joint disease of the right knee, previously characterized as patellar tendon insertional tendonitis of the right knee. 3. Entitlement to a disability rating in excess of 10 percent for limitation of extension of the right knee. 4. Entitlement to a total disability rating based on individual unemployability (TDIU). 5. Whether new and material evidence has been submitted to reopen the claim for defective vision, to include as secondary to migraine headaches. 6. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a right thigh disability. 7. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a left knee disorder. 8. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a right shoulder disorder. 9. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a seizure disorder. 10. Entitlement to an acquired psychiatric disorder, to include a nervous condition, alcohol dependency, bipolar disorder and posttraumatic stress disorder (PTSD). 11. Entitlement to service connection for degenerative joint disease of the hands and neck. 12. Entitlement to service connection for muscle spasms of the neck, arms, back, fingers, toes, and legs. 13. Entitlement to service connection for peripheral and polyneuropathy. 14. Entitlement to service connection for tumor over nerve in brain. 15. Entitlement to service connection for hearing loss. 16. Entitlement to service connection for hypertension. 17. Entitlement to service connection for a right hip disorder. 18. Entitlement to service connection for a left hip disorder. 19. Entitlement to service connection for a left shoulder disorder. 20. Entitlement to service connection for a left thigh disorder. 21. Entitlement to service connection for a bone disorder. 22. Entitlement to service connection for gastroesophageal reflux disorder (GERD). 23. Entitlement to service connection for liver disease. 24. Entitlement to special monthly compensation based upon the need for aid and attendance. WITNESSES AT HEARING ON APPEAL Veteran, his spouse and his sister ATTORNEY FOR THE BOARD A. Adamson, Counsel INTRODUCTION The Veteran served on active duty from March 1977 to March 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from various rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. With regard to the claim for an acquired psychiatric disorder, to include a nervous condition, alcohol dependency, bipolar disorder and PTSD, in Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims (Court) held that when the Veteran specifically requests service connection for PTSD, but the medical record includes other psychiatric diagnoses, the claim may not be narrowly construed as only a PTSD claim, and should be considered as a claim for a psychiatric disorder. Here, the evidence of record reflects that the Veteran has claimed service connection for several psychiatric disorders, to include PTSD; however, the RO has developed these as several separate appeals. In order to more efficiently describe the claims, as well as in an effort to be in compliance with the spirit of Clemons, the Board has recharacterized the Veteran's nervous condition, alcohol dependency, bipolar disorder and PTSD claims as a single claim for an acquired psychiatric disorder, as noted in the case caption, above. In a March 2006 decision, the Board denied entitlement to a disability rating in excess of 30 percent for migraine headaches, denied entitlement to a disability rating in excess of 10 percent for degenerative joint disease of the right knee, and denied entitlement to a disability rating in excess of 20 percent for lumbosacral strain. The Veteran appealed the Board's March 2006 decision to the Court, which in an August 2007 order granted a Joint Motion for Remand, vacating the March 2006 decision. Since that time, a January 2012 Board decision was issued denying the entitlement to a disability rating in excess of 20 percent for lumbosacral strain. This Board decision was not appealed, therefore the issue related to the rating assigned for the lumbosacral strain is no longer within the Board's jurisdiction. The Board observes that the issues related to the Veteran's right knee rating arise out of the December 2000 rating decision, which denied an increase for the right knee patellar tendon insertional tendonitis (now characterized as degenerative joint disease). During the course of this appeal, an April 2005 rating decision was issued granting a separate rating for limitation of extension of the right knee. Moreover, the March 2006 Board decision, while not separately characterizing the two aspects of the right knee disorder, did analyze the claim in relation to the knee's range of motion. Subsequent Supplemental Statements of the Case also list both aspects of the right knee disorder as part of this appeal. The Board, therefore, finds that both degenerative joint disease and limitation of extension are a part of the increased rating claim for the right knee that has been pending since December 2000. Thus, both aspects of the right knee disability rating are separately characterized in the case caption, above. A hearing was held on June 12, 2003, in Montgomery, Alabama, before Kathleen K. Gallagher, a Veterans Law Judge who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c) (West 2002) and who is rendering the determination in this case. Testimony was taken as to the issues related to the ratings for migraine headaches and the right knee at that time. A transcript of the hearing is in the claims file. The Board observes that the Veteran was mistakenly notified by the Board, via a June 2011 letter, that the undersigned Veterans Law Judge retired and asked if he desired to appear at a hearing before another Veterans Law Judge. In a July 2011 response, the Veteran identified that he wished to appear at a hearing before a Veterans Law Judge via video conference at his local RO. However, in October 2011, the Veteran was sent a corrective letter that stated that the Veterans Law Judge had not retired and asked whether the Veteran still desired to appear at a hearing. The Veteran was notified that without a response, it would be assumed that he did not desire a hearing. The Veteran has not notified VA of any request for an additional hearing as to the migraine headache or right knee issues. Therefore, the Veteran's July 2011 hearing request is deemed withdrawn. A hearing as to several of the other remaining issues was held via live video conference between the Board and the Montgomery, Alabama, RO, before the undersigned VLJ on December 13, 2012. A transcript of that hearing is found within the Veteran's electronic (Virtual VA) claims file. The Board again confirms that the Veteran is not represented with regard to any claim remaining under appeal. He submitted a statement to the RO in 2010, noting that he no longer wished to be represented by his private representative. In a February 2011 statement, addressed to the U.S. Department of Veterans Affairs, the Veteran revoked the power of attorney. The representative submitted a motion to withdraw as the Veteran's representative to the Board in July 2011. There remains no valid power of attorney currently in the claims file. Hence, the Board will continue to treat the Veteran as if he is representing himself. The Board recognizes that at the December 2012 Board hearing, testimony was taken related to the Veteran's back disability. As noted above, this issue is no longer within the Board's jurisdiction and, therefore, cannot be considered in this decision. In that the Veteran provided hearing testimony related to that condition after the decision, the Board will consider the hearing testimony a new claim for an increased rating for the lumbar spine disability. This issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. Moreover, in March 2013, the Veteran submitted a handwritten communication raising the claim of entitlement to service connection for chronic obstructive pulmonary disease (COPD). This issue has not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. The issues of entitlement to a TDIU, and entitlement to service connection for an acquired psychiatric disorder, to include a nervous disorder, alcohol dependence, PTSD, and bipolar disorder are all decided in the decision, below. The remaining issues listed in the case caption, above, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the Veteran's appeal as to the claims decided herein has been obtained. 2. The Veteran filed his claim for a TDIU in October 2007. 3. A 100 percent schedular rating is assigned for service-connected pain disorder and depression associated with a general medical condition with history of self-medicating with alcohol, effective December 8, 2000, and special monthly compensation under 38 U.S.C.A. § 1114(s) is assigned, effective March 11, 2004; therefore, the Veteran has been in receipt of the maximum available benefit since a date prior to his 2007 claim for a TDIU. 4. The Veteran is in receipt of service connection at the maximum rating for a psychiatric disorder and the symptoms of a nervous condition, alcohol dependency, bipolar disorder and PTSD are encompassed within that rating. CONCLUSIONS OF LAW 1. The claim for entitlement to a TDIU is moot, therefore the appeal of this issue is dismissed. 38 C.F.R. § 4.16(a) (2012). 2. As to the claim for service connection for an acquired psychiatric disorder, to include a nervous condition, alcohol dependency, bipolar disorder and PTSD, the symptoms claimed cannot be separated from the Veteran's now service-connected psychiatric disorder, which is presently receiving the maximum rating allowable under the General Rating Formula for Mental Disorders; his claim for service connection for these disorders is therefore moot, and the appeal is dismissed. 38 U.S.C.A. § 7105(d) (West 2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS DUTIES TO NOTIFY AND ASSIST VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his/her representative, if applicable, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Further, in Dingess v. Nicholson, the Court held that, upon receipt of an application for a service-connection claim, VA is required to review the evidence presented with the claim and to provide the claimant with notice of what evidence not previously provided will help substantiate his/her claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006); see also 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Specifically, VA must notify the claimant of what is required to establish service connection and that a disability rating and effective date for the award of benefits will be assigned if service connection is awarded. Regarding the claim for a TDIU, as will be explained in detail below, the RO has granted a 100 percent schedular disability rating for service-connected pain disorder and depression associated with a general medical condition with history of self-medicating with alcohol, effective December 8, 2000, and special monthly compensation from March 11, 2004. These awards moot the claim for a TDIU, which was filed in October 2007. As such, review of VA's duties to notify and assist is not necessary as to the TDIU claim. With regard to the claim for service connection for an acquired psychiatric disorder, to include a nervous disorder, alcohol dependence, PTSD, and bipolar disorder, the facts in this appeal are not in dispute and the issue is decided below as a matter of law. The legal outcome is clearly dictated by the existing law regardless of any further notice the Veteran might receive. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (VCAA notice not required where there is no reasonable possibility that additional development will aid the veteran); see also Mason v. Principi, 16 Vet. App. 129, 132 (2002) (VCAA not applicable "because the law as mandated by statute and not the evidence is dispositive of the claim"). Thus, VA's duties to notify and assist with regard to this claim will not be discussed further. LAW AND ANALYSIS TDIU It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate, "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340(a) (1), 4.15 (2012). A claim for a TDIU "presupposes that the rating for the [service-connected] condition is less than 100%, and only asks for TDIU because of 'subjective' factors that the 'objective' rating does not consider." Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). In this case, service connection is in effect for pain disorder and depression associated with a general medical condition with history of self-medicating with alcohol rated as 100 percent disabling, migraine headaches rated as 30 percent disabling, lumbosacral strain rated as 20 percent disabling, degenerative joint disease of the right knee rated as 10 percent disabling, and limitation of extension of the right knee rated as 10 percent disabling. The Veteran's combined disability rating, effective since December 8, 2000, is 100 percent. Moreover, the Veteran has received special monthly compensation under 38 U.S.C.A. § 1114, subsection (s) and 38 C.F.R. § 3.350(i) since March 11, 2004, on account of his single disability rated as 100 percent disabling and additional service-connected disabilities with an independent combined rating of 60 percent or more. Prior to 2008, the Board treated a 100 percent schedular rating as subsuming the need for TDIU consideration on the basis that the 100 percent schedular rating delivered more benefits than could be obtained by a TDIU rating. The Board's treatment in this regard stemmed primarily from a June 1999 opinion of VA's General Counsel (GC), which held that receipt of a 100 percent scheduler rating for a service-connected disability rendered moot any pending claim for a TDIU and required dismissal of the TDIU claim. See VA O.G.C. Prec. Op. No. 6-99; Green v. West, 11 Vet. App. 472, 476 (1998); Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). In 2008, however, the Court issued Bradley v. Peake, 22 Vet. App. 280 (2008), which is contrary to GC's previously noted precedent opinion, since withdrawn in response to Bradley. According to Bradley, although no additional disability compensation may be paid when a total schedular disability rating is already in effect, a separate award of a TDIU predicated on a single disability (perhaps not ratable at the schedular 100 percent level) when considered together with another disability separately rated at 60 percent or more may warrant payment of special monthly compensation (SMC) under 38 U.S.C.A. § 1114(s). The Court reasoned that it might therefore benefit the Veteran to obtain or retain a TDIU rating even where a 100 percent schedular rating is already in effect. SMC is payable at the (s) rate when a veteran has a single service-connected disability rated as 100 percent disabling and, in addition: (1) has a service-connected disability or disabilities independently ratable at 60 percent, or (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C.A. § 1114(s) (West 2002). These benefits are not available when the 100 percent disability rating is based on multiple disabilities, none of which is rated 100 percent disabling, or which arise from a single etiology or accident. Buie v. Shinseki, 24 Vet. App. 242, 249-50 (2010); Bradley v. Peake, 22 Vet. App. 280, 290-91 (2008). Here, the Veteran's claim for a TDIU was filed in October 2007. The Veteran has been in receipt of a 100 percent rating for service connected pain disorder and depression associated with a general medical condition with history of self-medicating with alcohol since December 8, 2000. Pursuant to Bradley, such an award does not automatically moot the pending appeal for a TDIU. However, the Board finds that this case is distinguishable from Bradley in that the Veteran's remaining service connected disabilities are independently ratable at 60 percent or more since March 11, 2004, and he has been granted SMC under 38 U.S.C.A. § 1114(s) since that time. Thus, since prior to the date of the TDIU claim, the Veteran has been in receipt of the maximum allowable benefit by way of having a single 100 percent schedular rating and special monthly compensation under 38 U.S.C.A. § 1114(s). Therefore, the concerns raised in Bradley are not present here and the claim for a TDIU is moot. Therefore, it is dismissed. Service Connection - Acquired Psychiatric Disorder Nervous Disorder, Alcohol Dependence, PTSD, and Bipolar Disorder Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1131. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Under section 3.310(a) of VA regulations, service connection may also be established on a secondary basis for a disability that is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. The Veteran in this case has perfected separate claims seeking service connection for a nervous disorder, alcohol dependence, PTSD, and bipolar disorder, which have been recharacterized for the purposes of this decision as a single claim for an acquired psychiatric disorder with symptoms of the claimed disorders. He claims that symptoms of these disabilities initially manifested in service, or, in the alternative, that they manifested due to his other already service-connected disabilities. The Board notes that the Veteran is service-connected for a pain disorder and depression associated with a general medical condition with a history of self-medicating with alcohol. He receives the maximum rating of 100 percent, effective since December 2000, under the General Rating Formula for Mental Disorders, 38 C.F.R. § 4.130. Given that the Veteran is already receiving the maximum rating under the General Rating Formula for Mental Disorders, a separate finding that service connection is warranted for the symptoms of a nervous disorder, alcohol dependence, PTSD, and bipolar disorder that may exist is not possible. Each of these claimed disorders are mental disorders, which would be rated under the same General Rating Formula for Mental Disorders. There is no way to distinguish the symptoms of one from the other and the Board will not attempt to do so. The Court has held that the Board is precluded from differentiating between the symptomatology attributable to a nonservice-connected disability and a service-connected disability in the absence of medical evidence that does so. See Mittleider v. West, 11 Vet. App.181, 182 (1998) (per curium), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996). If the Veteran were granted service connection for the claimed nervous disorder, alcohol dependence, PTSD, and bipolar disorder, the symptoms encompassed in this claim would overlap with his already service-connected psychiatric disability, which is presently receiving the maximum rating. Such overlapping symptomatology would result in pyramiding. See 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet. App. 259 (1994) (in cases where separate and distinct manifestations have arisen from the same injury, separate disability ratings may be assigned where none of the symptomatology of the conditions overlaps). Rather, the RO has taken account of all of the Veteran's psychiatric symptoms when it assigned the Veteran's 100 percent disability rating for the pain disorder with depression associated with a general medical condition with a history of self-medication with alcohol. Moreover, since the 100 percent rating has been assigned throughout the entire period for which service connection has been separately sought for these other symptoms of mental disorder, there is no question as to whether any increased rating is due to the Veteran for his service-connected psychiatric disorder any time during the period of this appeal. Thus, no issue of law or fact remains to be decided with regard to the claim for entitlement to service connection for an acquired psychiatric disorder, to include a nervous disorder, alcohol dependence, PTSD, and bipolar disorder. Pursuant to 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. Therefore, the Veteran's claim of entitlement to service connection for and acquired psychiatric disorder, to include nervous disorder, alcohol dependence, PTSD, and bipolar disorder is dismissed. ORDER Entitlement to a total disability rating based on individual unemployability is dismissed. Entitlement to service connection for an acquired psychiatric disorder, to include a nervous condition, alcohol dependency, bipolar disorder, and PTSD is dismissed. REMAND Reasons for Remand: To offer the Veteran his requested hearings, to issue a statement of the case, and to allow for the initial consideration of additional evidence by the RO. RO Hearing In his March 2007 substantive appeal, which perfected the claims as to whether new and material evidence has been submitted to reopen the claims of service connection for a seizure disorder, for a left knee disorder and for a right shoulder disorder, as well as the claims for service connection for a right hip disorder, for a left hip disorder, and for a left shoulder disorder, the Veteran requested a Regional Office hearing. The Veteran was never scheduled for this hearing and there is no evidence in the record that he withdrew this request. Therefore, a remand is necessary in order for the Veteran to be afforded an opportunity to present testimony before the RO during a hearing concerning these claims on appeal, should he still desire such a hearing. Board Hearing In his March 2007 substantive appeal, which perfected several claims, including that of whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for a seizure disorder, the Veteran requested a Travel Board hearing. He opted for Board videoconference hearing and was afforded such in December 2012, however, hearing testimony was not taken related to the seizure disorder claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In that the seizure disorder claim was overlooked, the Board finds that the Bryant duties have not yet been achieved. As the Veteran is entitled to a hearing on all issues under appeal for which a hearing request is made, the issue of whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for a seizure disorder must be remanded in order to afford the Veteran an opportunity to provide hearing testimony on this issue at a Travel Board or videoconference hearing. Initial RO Review of New Evidence The Board observes that the most recent readjudication of the claims on appeal was by way of several April 2012 statements of the case (SOCs) and supplemental SOCs. In December 2012, a CD containing pertinent evidence, namely VA treatment records from the Birmingham VA Medical Center (VAMC), was received by the Board from the Veteran. The Board conducted a preliminary review of the 718 pages of records on the CD and confirms that there are treatment notes relevant to each of the remaining claims found in this material. These records have not been previously considered by the RO. In March 2013, the Board mailed the Veteran a letter notifying him of these outstanding records and asking if he wished to waive initial review of this evidence by the RO. The letter informed the Veteran that if he did not respond with an affirmative waiver, then the Board would assume the he does not wish to have the Board decide his appeal at this time and notified him that it would remand the matter to the RO for review. The Veteran did not respond. The additional evidence is, therefore, referred to the RO for initial review and preparation of an SSOC, if a grant of the benefits sought is not made. 38 C.F.R. § 20.1304(c) (a claimant must submit a written waiver of evidence submitted directly to the Board, or otherwise the new evidence along with the claims folder must be referred back to the RO for consideration). GERD and Liver Disease Claims Finally, with regard to the Veteran's claims for service connection for both GERD and liver disease, the Board notes that the Veteran's Virtual VA file contains the October 2012 rating decision that denied the claims. The Veteran's paper claims file contains the March 2013 written communication by the Veteran clearly disagreeing with the denial of service connection for GERD and for liver disease. Because the RO has not yet issued an SOC addressing those two issues, the Board must remand each to the RO for issuance of an SOC. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: 1. Clarify with the Veteran whether he continues to seek a Regional Office hearing as to the claims of whether new and material evidence has been submitted to reopen the claims of service connection for a seizure disorder, for a left knee disorder and for a right shoulder disorder, as well as the claims for service connection for a right hip disorder, for a left hip disorder, and for a left shoulder disorder. If so, schedule a hearing before the VA Decision Review Officer at the Montgomery, Alabama, RO. The Veteran should be notified of the date and time of the hearing, and the RO should associate a copy of such notice with the claims file. A copy of the hearing transcript should also be associated with the claims file. 2. Clarify with the Veteran whether he continues to seek a Travel Board hearing or Board video conference hearing as to the claim for service connection for a seizure disorder. If so, schedule such a hearing for the Veteran before a VLJ. If possible, the hearing should be put on the schedule of the undersigned VLJ. The Veteran should be notified of the date and time of the hearing, and the RO should associate a copy of such notice with the claims file. 3. The claims remaining on appeal, other than those addressed in remand directives 1, 2, and 4, must be reviewed by the RO on the basis of all additional evidence received since the last SOC and SSOC as to each claim, to include the CD containing records from the Birmingham VAMC, submitted into the record by the Veteran in December 2012. If any benefit sought is not granted to the fullest extent, the Veteran should be furnished an SSOC and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 4. Send the Veteran an SOC in response to the March 2013 notice of disagreement related to the issues of entitlement to service connection for GERD and entitlement to service connection for liver disease. These issues were addressed in the October 2012 rating decision, which is found in the Veteran's Virtual VA claims file. The purpose of this REMAND is to obtain additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The Veteran has the right to submit additional evidence and argument on the 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. 2012). ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs