Citation Nr: 1330684	
Decision Date: 09/24/13    Archive Date: 09/30/13

DOCKET NO.  03-21 650	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas


THE ISSUES

1. Entitlement to an initial evaluation in excess of 10 percent for gastroesophageal reflux disease (GERD), esophagitis and gastritis.

2. Entitlement to an effective date earlier than October 17, 2001, for the award of service connection for GERD, esophagitis and gastritis.

3. Entitlement to a total disability evaluation based upon individual unemployability based on service-connected disabilities (TDIU).


ATTORNEY FOR THE BOARD

Christopher Murray, Counsel





INTRODUCTION

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).

The Veteran had active military service from March 1953 to December 1956 and from January 1957 to April 1973.

This case comes before the Board of Veterans' Appeals (Board) on appeal of February 2010 and June 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas.

Clarification of Issues on Appeal

In a January 2013 remand, the Board noted the Veteran had filed a notice of disagreement (NOD) with respect to initial evaluation assigned to his service-connected GERD and ordered the issuance of a statement of the case (SOC).  An SOC was issued to the Veteran on May 9, 2013.  In August 2013, the Board received a statement from the Veteran to which he attached a copy of a previously submitted VA Form 9, dated May 21, 2013, asserting entitlement to a 10 percent evaluation for GERD.  The Board will accept this submission as a timely filed substantive appeal with respect to the increased evaluation claim.  

The issue of entitlement to TDIU is addressed in the REMAND section below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the appellant if further action is required.


FINDINGS OF FACT

1. In a VA Form 9 dated May 2013, the Veteran asserted entitlement to a 10 percent evaluation for GERD with gastritis and esophagitis; he has not since asserted entitlement to an evaluation in excess of 10 percent.

2. In a subsequent May 2013 rating decision, a 10 percent evaluation for GERD with gastritis and esophagitis was awarded effective as of the date service connection was established.


CONCLUSION OF LAW

No case or controversy exists concerning an appeal for an evaluation in excess of 10 percent for GERD with gastritis and esophagitis.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 19.26(d). 20.204 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

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 (West 2002).  In a May 2013 substantive appeal, the Veteran stated "I contend my rating should be 10% for a gastrointestinal reflux disease [with] gastritis and esophagitis and associated signs and symptoms."  A subsequent rating decision dated May 30, 2013, awarded an evaluation of 10 percent for the Veteran's GERD effective October 21, 2001, the date service connection for this disability was established.  In an August 2013 statement, while the Veteran asserted entitlement to an effective date as early as 2000, he did not indicate disagreement with the assigned 10 percent evaluation.

In light of the May 2013 rating decision awarded the requested 10 percent evaluation, there remains no case or controversy concerning the Veteran's appeal for an increased initial evaluation for GERD with gastritis and esophagitis.  As noted above, his claim for an earlier effective date has been referred to the RO for consideration and adjudication in the first instance.  Accordingly, there is no issue concerning the evaluation assigned to GERD presently on appeal, and the issue is dismissed.  See 38 C.F.R. § 19.26(d) (an appeal may be "resolved by a grant of the benefit(s) sought on appeal"); see also Hamilton v. Brown, 4 Vet. App. 528 (1993) (en banc), aff'd, 39 F.3d 1574 (Fed. Cir. 1994); AB v. Brown, 6 Vet. App. 35, 39 (1993) (a claimant may limit a claim or appeal to the issue of entitlement to a particular disability rating which is less than the maximum disability rating allowed by law).


ORDER

The appeal for an increased initial evaluation for GERD with gastritis and esophagitis is dismissed.


REMAND

With respect to the issue of entitlement to TDIU, another remand is necessary in the instant case.  In a July 2013 remand, the Board noted that the issue of TDIU had previously been remanded in January 2013 for readjudication by the Agency of Original Jurisdiction, and found that this development had not been completed.  See Stegall v. West, 11 Vet. App. 269 (1998).  The Board again remanded the claim for TDIU, specifically instructing the AOJ to readjudicate the issue of TDIU, including whether such claim should be referred to Director of C&P for extraschedular consideration, and to issue a supplemental statement of the case (SSOC) if the TDIU claim remains denied.

Following the July 2013 remand, the Veteran's claim has been returned to the Board with no additional development having been undertaken.  Instead, there is a handwritten note on the first page of the Board's remand noting that TDIU was denied on October 23, 2012.  However, there is no record of such a denial having been issued, either in the paper or virtual claims file.  As such, the Veteran's claim must once again be remanded for compliance with the Board's previous instructions.  See Stegall, 11 Vet. App. 268 (a remanded confers upon the claimant, as a matter of law, the right to compliance with the remand orders).  

Finally, with respect to the earlier effective date claim, a rating decision issued on May 30, 2013, awarded an earlier effective date of October 17, 2001, for both the award of service connection for GERD and an initial 10 percent disability evaluation.  In a statement received in August 2013, the Veteran reiterated his contention that the proper effective date should be awarded back to 2000.  The Board will accept this statement as a notice of disagreement with respect to the effective date assigned by the May 2013 rating decision.  The proper course of action is for the Board to remand the claim for the issuance of a statement of the case.  See Manlincon v. West, 12 Vet. App. 238 (1999).  Following the issuance of an SOC, the Veteran will have the opportunity to perfect his appeal for an earlier effective date by submitting a substantive appeal.

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  Expedited handling is requested.)

1. Issue a statement of the case with respect to the issue of entitlement to an effective date earlier than October 17, 2001, for the award of service connection for GERD, gastritis and esophagitis.  All appropriate appellate procedures should then be followed. The Veteran should be advised that he must complete his appeal of these issues by filing a timely substantive appeal following the issuance of a statement of the case.

2. Readjudicate the issue of entitlement to a TDIU, including whether such claim should be referred to the Director of C&P for extraschedular consideration.  If the benefit sough on appeal remains denied, the Veteran and his representative, if any, must be furnished an SSOC and be given an opportunity to submit additional argument before the claims file is returned to the Board for further appellate consideration.  

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. 2012).




______________________________________________
KELLI A. KORDICH
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs