Citation Nr: 1327022 Decision Date: 08/23/13 Archive Date: 08/29/13 DOCKET NO. 10-11 191 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an evaluation in excess of 40 percent for degenerative disc disease, thoracolumbar spine. 2. Entitlement to an initial evaluation in excess of 30 percent for degenerative disc disease of the cervical spine, associated with degenerative disc disease, thoracolumbar spine. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The Veteran served on active duty from July 1959 to July 1962 and from September 1966 to December 1983. This matter comes before the Board of Veterans' Appeals (Board) from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, that increased the evaluation of the Veteran back disability to 40 percent disabling and granted entitlement to service connection for the cervical spine disability, evaluated as 30 percent disabling. The claims file has since been removed to the RO in Atlanta, Georgia. The Veteran filed a statement dated in August 2008 indicating that he wished a reevaluation of his service-connected neck and back disabilities. The Board finds that this statement should be considered as a notice of disagreement with the evaluations assigned in the September 2007 rating decision. The evaluations were continued in a February 2009 rating decision, the Veteran filed a notice of disagreement dated in April 2009, and the RO issued a statement of the case dated in February 2010. The RO issued a supplemental statement of the case dated in March 2013 in which the RO noted that a substantive appeal had been received in March 2010. The Veteran filed a substantive appeal in May 2013. In this regard, the Board notes that the Veteran's claims file does not include a copy of a March 2010 substantive appeal, as noted in the March 2013 supplemental statement of the case. The formal substantive appeal contained in the claims file is dated in May 2013, and is an untimely substantive appeal with respect to the claims. Under 38 C.F.R. § 20.302(b), the Veteran had 60 days from the date of the SOC to file a substantive appeal on these issues. The Veteran was informed of this time limitation. Proper completion and filing of a substantive appeal are the last actions a claimant needs to take to perfect an appeal. 38 C.F.R. § 20.202. However, unlike an untimely notice of disagreement, which would present a jurisdictional bar to consideration of a claim, a substantive appeal may be accepted when untimely, if circumstances so warrant. The failure to timely file a substantive appeal does not automatically deprive the Board of jurisdiction over a claim. Percy v. Shinseki, 24 Vet. App. 37 (2009) (finding that the VA may waive any issue of timeliness in the filing of a substantive appeal, either explicitly or implicitly); see also Rowell v. Principi, 4 Vet. App. 9, 17 (1993). In this case, the Board finds that the RO waived the time requirements for filing a substantive appeal in this case by readjudicating the claims after the issuance of the February 2010 SOC and by certifying the case for appeal. See Gonzalez-Morales, 16 Vet. App. 556, 557 (2003); see also Percy, 23 Vet. App. 42-46. Accordingly, the Board waives the filing of a timely substantive appeal with respect to the issues on appeal and finds that it has jurisdiction over these matters. The rating claims on appeal remain in controversy because the ratings assigned remain less than the maximum available benefits awardable. See AB v. Brown, 6 Vet. App. 35, 38 (1993); Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board notes that, in addition to the Veteran's claims file, the Veteran also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. The Board has reviewed the contents of the paperless file as well as the Veteran's claims file and will proceed with review of the claims based upon all relevant evidence. 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 this case, the Board notes that the Veteran's most recent VA examination for his neck and back is dated in September 2008. Since that time, the Veteran has submitted statements indicating that his conditions have worsened and now also include radiculopathy to the upper and lower extremities. Here, the Board notes that the Veteran is service-connected for cubital tunnel syndrome, right; carpal tunnel syndrome, right (claimed as neuropathy, right arm) associated with disability disease of the cervical spine. Based on the foregoing, the Board finds that the Veteran should be afforded a contemporaneous VA examination in order to determine the current level of his service-connected back and neck disabilities. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be afforded a VA examination in order to assess the current nature and severity of his service-connected back and neck disabilities. The Veteran 's claims folder must be made available to the examiner for review in conjunction with the examination. The examiner must state that the examination report that the claims file was reviewed. The examiner should conduct complete range of motion studies and discuss the presence or absence of any weakened movement, including weakened movement against varying resistance, excess fatigability with use, incoordination, painful motion, pain with use, and provide an opinion as to how these factors result in any limitation of motion. The examiner should also indicate whether pain affects some aspect of the normal working movements of the body, such as excursion, strength, speed, coordination, and endurance. If the Veteran describes flare-ups of pain, the examiner should offer an opinion as to whether there would be additional limits on functional ability during flare-ups, and if feasible, express this in terms of additional degrees of limitation of motion during the flare-ups. The examiner should provide an opinion as to whether the Veteran had any prostrating attacks in the last 12 months, whether the back and neck disabilities cause radiculopathy in the upper and lower extremities and, if so, is this radiculopathy best characterized as incomplete and mild paralysis, incomplete and moderate paralysis, incomplete and moderately severe paralysis, incomplete and severe paralysis, or complete paralysis. The examiner should also indicate the effect the disabilities have, if any, on the Veteran's current level of occupational impairment. Specifically, the examiner should render an opinion as to whether the service-connected disabilities cause marked interference with employment, or the need for frequent periods of hospitalization. A complete rationale for all opinions expressed must be included in the examination report. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. 2. After undertaking any additional development deemed appropriate in addition to that requested above, re-adjudicate the issues remaining on appeal. If any benefit sought on appeal remains denied, provide the Veteran and his representative a supplemental statement of the case. 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). The purpose of the examination requested in this remand is to obtain information or evidence (or both) which may be dispositive of the appeal. Therefore, the Veteran is hereby placed on notice that, pursuant to 38 C.F.R. § 3.655, failure to cooperate by attending a requested VA examination may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). 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). _________________________________________________ Thomas O'Shay 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) (2012).