Citation Nr: 1325535 Decision Date: 08/13/13 Archive Date: 08/16/13 DOCKET NO. 10-04 731 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for degenerative disc and joint disease lumbar spine. 2. Entitlement to an initial evaluation in excess of 10 percent for degenerative disease of the left shoulder. 3. Entitlement to an initial evaluation in excess of 20 percent for degenerative disease of the right shoulder. 4. Entitlement to an initial evaluation in excess of 10 percent for left ankle injury. 5. Entitlement to an initial evaluation in excess of 10 percent for enthesopathy of the left knee. 6. Entitlement to an initial evaluation in excess of 10 percent for enthesopathy of the right knee. 7. Entitlement to a compensable initial evaluation for sleep apnea. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Lipstein INTRODUCTION The Veteran served on active duty from December 1976 to December 2006. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Veteran requested a Board hearing, however, he withdrew that request in September 2011. The November 2007 rating decision also granted service connection for a right shoulder and bilateral knee disabilities. The Veteran filed a notice of disagreement in October 2008 with the initial ratings for right shoulder and bilateral knee disabilities. He offered further argument in support of these claims in a December 2008 statement. A statement of the case was issued in November 2009 with regard to these issues. In his substantive appeal the Veteran expressly indicated that he was only appealing the lumbar spine, left shoulder, left ankle, and sleep apnea issues. However, in a May 2011 VA Form 8, the RO certified the Veteran's appeal for the right shoulder and bilateral knee issues, as well as the lumbar spine, left shoulder left ankle, and sleep apnea issues. The United States Court of Appeals for Veterans Claims (Court) has held that the filing of a substantive appeal is not a jurisdictional requirement, that the filing of a timely substantive appeal may be waived, and that where the RO takes actions to indicate that such filing has been waived (for instance by certifying the appeal), the Board has jurisdiction to decide the appeal. Percy v. Shinseki, 23 Vet. App. 37 (2009); Gonzalez-Morales v. Principi, 16 Vet. App. 556, 557-58 (2003); see also Archbold v. Brown, 9 Vet. App. 124, 132 (1996). There is no evidence that the RO closed the appeal with regard to the right shoulder and bilateral knee issues; indeed, the RO certified the appeal to the Board with regard to the right shoulder and bilateral knee issues. As such, the Veteran's right shoulder and bilateral knee claims are before the Board. 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 In October 2008, the Veteran stated that the lumbar spine, bilateral shoulder, left ankle, bilateral knee and sleep apnea disabilities have worsened since the most recent VA examination in June 2007. As such, VA is required to afford contemporaneous VA examinations, to assess the current nature, extent and severity of the lumbar spine, bilateral shoulder, left ankle, bilateral knee and sleep apnea disabilities. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). Thus, the Board finds that these claims must be remanded. Accordingly, the case is REMANDED for the following actions: 1. Notify the Veteran that he may submit lay statements from individuals who have first-hand knowledge of the nature, extent and severity of his back, right shoulder, left shoulder, left ankle, right knee, left knee and sleep apnea symptoms and the impact of the conditions on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 2. After physically or electronically associating any pertinent, outstanding records with the claims folder, schedule the Veteran for an examination to determine the nature and severity of his current low back disability, including any associated respective neurological impairment as well as the nature and severity of his left shoulder, right shoulder, left ankle, left knee and right knee disabilities. The claims folder must be made available to and reviewed by the examiner. The examiner should identify all back orthopedic pathology found to be present. The examiner should conduct all indicated tests and studies, to include range of motion studies expressed in degrees and in relation to normal range of motion, and should describe any pain, weakened movement, excess fatigability, and incoordination present. To the extent possible, the examiner should express any functional loss in terms of additional degrees of limited motion of the Veteran's low back, left shoulder, right shoulder, left ankle, left knee and right knee disabilities, i.e., his pain-free range of motion. In addition, as to his low back, if possible, the examiner should state whether the back disability has been productive of any incapacitating episodes, which are defined as periods of acute signs and symptoms that require bed rest prescribed by a physician or treatment by a physician, and if so, the frequency and duration of those episodes. Further, as to his low back, the examiner should also discuss the nature and severity of any right and left-sided radiculopathy or neuropathy found to be present. The examiner must also state whether the Veteran has bowel or bladder problems related to his low back disability. As to his left and right knee disabilities, the examiner must state whether he has any instability or subluxation. As to each disability, if there are associated neurologic pathology the examiner should identify the nerve(s) affected, or seemingly affected. Each nerve affected or seemingly affected should be identified and the disability caused thereby should be described as equating to mild, moderate, moderately severe, or severe incomplete paralysis, or complete paralysis. All findings and conclusions should be set forth in a legible report. 3. After physically or electronically associating any pertinent, outstanding records with the claims folder, schedule the Veteran for an examination to determine the nature and severity of his current obstructive sleep apnea. The claims folder must be made available to and reviewed by the examiner. Any tests deemed necessary should be conducted. The examiner should elicit and record a complete history of the Veteran's symptomatology and treatment, and must note that, in addition to the medical evidence of record, the Veteran's personal statements have been considered in his/her opinion. The examiner must state the disability is productive of persistent day-time hypersomnolence; whether it requires use of a breathing assistance device such as a CPAP machine; and whether the Veteran has chronic respiratory failure or requires tracheostomy. All findings and conclusions should be set forth in a legible report. 4. Then readjudicate the appeal. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. The appellant 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). _________________________________________________ STEVEN D. REISS 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).