Citation Nr: 1335633 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 10-13 836A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to a rating in excess of 10 percent for residuals of shrapnel wounds, to include scars on the chin and neck. 2. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance (A&A) or by reason of being housebound. ATTORNEY FOR THE BOARD Tiffany Berry, Counsel INTRODUCTION The Veteran had active duty service from September 1963 to September 1967. He is the recipient of the Purple Heart Medal. These matters come to the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which, in pertinent part, denied the Veteran's claim for an increased rating for shrapnel wounds of the chin and neck. A decision as to the Veteran's claim for SMC based on the need for regular A&A or by reason of being housebound was deferred until the March 2010 statement of the case (SOC), which then denied his claim. The Veteran failed, without explanation, to appear for a hearing scheduled before a Veterans Law Judge in February 2012. His hearing request is therefore deemed to be withdrawn. See 38 C.F.R. § 20.704(d) (2013). In November 2012 and May 2013, the instant matters were remanded for additional development. The requested development has been completed and the claims are once again before the Board. The Board also notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are potentially relevant to the issue on appeal. Thus, any future consideration of this Veteran's case should take into account the existence of this electronic record. Additionally, in November 2012, the Board granted the Veteran's claim of entitlement to a total disability rating based on individual unemployability (TDIU). A November 2012 rating decision implemented this grant and assigned an effective date of March 31, 2009. In an August 2013 statement, the Veteran stated he filed a Notice of Disagreements (NOD) to the November 2012 rating decision concerning the effective date of the grant of TDIU. However, the Veteran has not been provided a SOC in response to his timely filed NOD concerning the remaining claim. Consequently, as will be discussed below, the Board is remanding the Veteran's claims to the RO via the AMC, to provide the necessary SOC for the remaining claims. See Manlincon v. West, 12 Vet. App. 238 (1999). Additionally, the Board is remanding the issue of entitlement to SMC due to A&A for additional development. FINDING OF FACT The Veteran's shrapnel wound to the neck and chin is not manifested by visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features; or with two or three characteristics of disfigurement; or, by a scar which is painful, unstable or results in limitation of motion of an affected part. CONCLUSION OF LAW The criteria are not met for a disability rating higher than 10 percent for shrapnel wounds to the neck and chin. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.20, 4.118, Diagnostic Codes 7800-7805 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist under the Veterans Claims Assistance Act of 2000 (VCAA) The VCAA requires that proper notice under this law includes informing 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In a claim for increase, the VCAA requires notice of the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting veteran-specific notice as to effect on daily life and as to the assigned or a cross-referenced DC under which the disability is rated). The notice requirements were met in April and July 2009 letters. Relevant to the duty to assist, the Veteran's service treatment records as well as post-service VA treatment records have been obtained and considered. The Veteran has not identified any additional, outstanding relevant records that have not been requested or obtained. Additionally, the Veteran was afforded VA examinations in conjunction with the skin claim on appeal in August 2009 and May 2013. The Board finds that the May 2013 examinations is adequate to evaluate the Veteran's service-connected skin disability as it includes interview with the Veteran, a review of the record, and full physical examination which addresses the relevant rating criteria. Notably, VA's rating criteria requires use of an unretouched color photograph in this claim. See 38 C.F.R. § 4.118, Diagnostic Code 7800, Note 3. Here, the VA examiner forwarded to the RO an unretouched color photograph black and white photograph. After review of the previous and prior examination report descriptions, the photograph and the Veteran's contentions, the Board finds that remanding this claim for a color photograph would serve no useful purpose in substantiating any aspect of this claim. As such, the Board finds that the May 2013 VA examination report is adequate to adjudicate the Veteran's claim and no further examination is necessary. The Board further finds that the RO has complied with prior Board remand directives by associating with the claims folder the Veteran's treatment records and obtaining an examination report that is adequate for rating purposes. See Stegall v. West, 11 Vet. App. 268 (1998). As indicated above, the Board finds that the May 2013 VA examination report substantially complies with the remand directives even though the photograph provided is in black and white format. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). Thus, the Board finds that VA has fully satisfied the duty to assist, and it may proceed to an adjudication of the claim. Increased Rating Claim A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. This appeal stems from a claim for an increased rating filed in March 2009. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, separate ratings may also be assigned for separate periods of time based on the facts found. Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Id. See generally 38 U.S.C.A. § 5110(b)(2). The Veteran's service-connected shrapnel wounds of the chin and neck is rated under Diagnostic Codes 7800 for disfigurement of the head, face, or neck. The 10 percent rating assigned represents a residuals scar with a characteristic of being 1.5 cm. in width. See Board decision dated December 2005. Also for consideration are the Diagnostic Codes pertaining to scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), which may be separately evaluated and combined. 38 C.F.R. § 4.118, Diagnostic Code 7800, Note 4. The criteria for rating scars under Diagnostic Codes 7800-7805 were amended effective October 23, 2008 and apply to all claims received by VA on or after October 23, 2008. In the instant case the Veteran's claim was received in March 2009 and the revised criteria are applicable. Diagnostic Code 7800 provides that the 8 characteristics of disfigurement, for purposes of rating under 38 C.F.R. § 4.118, are the following: scar is 5 or more inches (13 or more cm.) in length; scar is at least one-quarter inch (0.6 cm.) wide at the widest part; surface contour of scar is elevated or depressed on palpation; scar is adherent to underlying tissue; skin is hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.); skin texture is abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); underlying soft tissue is missing in an area exceeding six square inches (39 sq. cm.); and skin is indurated and inflexible in an area exceeding six square inches (39 sq. cm.). Diagnostic Code 7800 provides that a skin disorder of the head, face, or neck with one characteristic of disfigurement is rated at 10 percent disabling. A skin disorder of the head, face, or neck with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement, is rated 30 percent disabling. A skin disorder of the head, face, or neck with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement, is rated 50 percent disabling. A skin disorder of the head, face, or neck with visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement, is rated 80 percent disabling. 38 C.F.R. § 4.118, Diagnostic Code 7800. Diagnostic Codes 7801 and 7802 provides ratings for scars, other than the head, face, or neck, that are deep or that cause limited motion or are superficial and do not cause limitation of motion, respectively. As the Veteran's disability pertains only to his chin and neck, this Diagnostic Code is not applicable. Diagnostic Code 7804 pertains to unstable or painful scars. One or two scars that are unstable or painful are rated at 10 percent disabling. Three or four scars that are unstable or painful are rated at 20 percent disabling. Five or more scars that are unstable or painful are 30 percent disabling. This is the highest rating available under this Diagnostic Code. Note (1) to Diagnostic Code 7804 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118, Diagnostic Code 7804. Diagnostic Code 7805 provides that any other scars (including linear scars) and other disabling effects of scars should be evaluated even if not considered in a rating provided under diagnostic codes 7800-04 under an appropriate diagnostic code. 38 C.F.R. § 4.118, Diagnostic Code 7805. Historically, the Veteran incurred shrapnel wound to the neck in February 1966. It was variously described as lacerating, penetrating and superficial. As the wound did not cause deep damage, it was debrided and closed primarily. Post-service, the Veteran attributed symptoms of jaw cramps and shooting pain to his service-connected shrapnel wound to the neck. See, e.g., VA Form 21-4138 received in November 1990; Veteran's statement received in April 2003. Additionally, the Veteran's spouse has described observing spasms of the Veteran's chin with eating or yawning, including brief episodes of "lockjaw." See VA Form 21-4138 dated June 2003. However, a VA examiner in July 2003 found that there was no disability as well as no residuals resulting in any type of disability from the shrapnel scar, to include discomfort on examination or limitation of motion. Notably, the Veteran's VA clinic records include an assessment of compressive myelopathy which has rendered him wheelchair-bound. The Veteran was provided a VA examination for his shrapnel wounds to the neck and chin in August 2009. The examiner determined there was no evidence of any feature or set of paired features showing gross distortion or asymmetry. The examiner noted that the Veteran stated the scars were painful if he pulled the hairs on his neck or chin when bathing or grooming. The Veteran was wearing a beard. No further discussion of the scars was provided. In November 2012, the Board remanded this claim for a VA examination. In compliance with these remand directives, the Veteran was reexamined in May 2013. During the May 2013 examination, the Veteran described a history of random episodes of sharp, cramp-like feelings of a short duration (less than a minute) occurring in the submandible area just over the scar, which seemed to occur while eating or fatigued. These episodes occurred less frequently over the years, but still occurred 3 to 4 times a month. He denied a history of wound breakdown, infection or further need for treatment of the wound after service. On examination, the examiner noted the Veteran's scar was not painful or unstable, with frequent loss of covering of skin over the scar. The examiner reported the scar measured 8 centimeters in length with the superior aspect of the scar being 1 centimeter wide with remaining distal aspect being 0.2 centimeters wide. There was some tenting of the skin with the neck in full extension and with the head rotated to the left, but the examiner noted there was no adherence or prevention of range of motion due to the scar. There was no evidence of muscle damage or loss. The examiner determined there was no elevation, depression, adherence to underlying tissue, missing underlying soft tissue, and no abnormal pigmentation. There was also no evidence of gross distortion or asymmetry of facial features or visible or palpable tissue loss. The combined total area of the scar was 2 centimeters squared. The examiner concluded that the scar does not result in limitation of function and does not impact the Veteran's ability to work. Also of record are VA treatment records dated since April 2008. However, these records do not contain any information relevant to the criteria required for rating the Veteran's service-connected scar, including evidence that the scar is painful or unstable. Under Diagnostic Code 7800 the next higher rating, 30 percent, is assigned for visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features; or with two or three characteristics of disfigurement. The Veteran does not have tissue loss or gross distortion or asymmetry of his features. The May 2013 VA examiner did not report seeing any abnormal pigmentation or texture of the skin. To the extent the Board has any competence in this matter, the Board does not find that the photograph of the Veteran's chin demonstrates tissue loss or gross distortion or asymmetry of his features. The Board also finds that the Veteran is not entitled to a higher disability rating under Diagnostic Code 7804 as his scar is not shown to be painful or unstable. Over the years, the Veteran has attributed symptoms of jaw cramps and a shooting pain sensation to his service-connected shrapnel wound and, during the examination in 2009, he described his scar as painful if his hairs were pulled when bathing or grooming. All of these events were described as brief and transitory in nature. He has not alleged any unstable skin symptoms. The May 2013 VA examiner found that the Veteran's scar was not painful or unstable on examination. This finding correlates with those of a VA examiner in July 2003 who found that there was no disability as well as no residuals resulting in any type of disability from the shrapnel scar, to include discomfort on examination or limitation of motion. Overall, the Board finds that the Veteran is not entitled to a compensable rating for a painful scar or unstable scar under Diagnostic Code 7804. Additionally, the Veteran's descriptions could potentially be construed as claiming that his scar results in abnormal motion of his jaw. However, the May 2013 VA examiner specifically found that the Veteran's shrapnel wound scar results in no limitation of motion. This finding is in agreement with a VA examiner assessment in July 2003. Overall, the Board finds that the Veteran is not entitled to a compensable rating for a painful scar under Diagnostic Code 7805. In the instant case, the evidence does not show that the Veteran meets the criteria for a higher rating still for any time during the appeal period. As such, a staged rating is not applicable. Based on the forgoing, the Board finds the Veteran's shrapnel wound does not meet, more closely approximate, the criteria for a rating in excess of 10 percent for any time during the appeal period. In so finding, the Board is cognizant of the allegations of the Veteran and his spouse regarding his jaw cramps, shooting pain sensations, and scar pain when grooming. However, the Board places greater probative weight to the findings of the VA examiners who have greater expertise and training than the Veteran and his spouse in evaluating the aspects of disability to attribute to a scar disability. These examiner opinions of no residual disability other than the visible scar greatly outweigh the self-diagnosis by the Veteran and his spouse. There is no doubt of material fact to be resolved in the Veteran's favor. 38 U.S.C.A. § 5107(b). The claim, therefore, must be denied. The Board has also considered whether referral for consideration of an extraschedular rating is warranted, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an "extra-schedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). The Court has held that the determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Service. Thun v. Peake, 22 Vet. App. 111 (2008). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. This means that initially there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required. If the criteria do not reasonably describe the claimant's disability level and symptomatology, a determination must be made whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). Here, VA rating criteria contain many various ways to evaluate a scar disability, to include on characteristics of disfigurement, healing, pain, limitation of motion and, potentially, muscle injury. The competent evidence fails to show anything unique or unusual about the Veteran's service connected shrapnel wound to the neck and chin that would render the schedular criteria inadequate. The Board is cognizant of the Veteran's allegations relating to jaw cramps, shooting pain and scar pain, but finds that the medical opinion that the scar disability does not cause any residual disability greatly outweighs the Veteran's own self-diagnosis. Quite simply, the Board finds that all currently manifested symptoms are contemplated in the rating assigned. Accordingly, referral for consideration of an extraschedular rating is not warranted. In accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009), a Veteran's claim for an increased disability evaluation may require a determination as to whether the Veteran is entitled to a total disability rating based on individual unemployability (TDIU). In this case, the Veteran has already established his entitlement to a TDIU. Accordingly, Rice considerations are inapplicable in this case. ORDER A rating in excess of 10 percent for shrapnel wound to the neck and chin is denied. REMAND As stated in the Introduction, a November 2012 rating decision granted the Veteran a TDIU, effective from March 31, 2009. In an August 2013 statement, the Veteran indicated he filed a notice of disagreement in December 2012 with the effective date assigned for the grant of the TDIU. While it does not appear this statement has been associated with the claims file, the August 2013 statement may be considered a timely notice of disagreement to the effective date assigned to the grant of a TDIU in the November 2012 rating decision. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (indicating he has to separately appeal these "downstream" issues). Therefore, on remand, the RO/AMC must send him an SOC in response to his timely notice of disagreement concerning the assignment of the March 31, 2009 effective date for the grant of TDIU. He must then be given time, in response to the SOC, to complete the steps necessary to perfect his appeal of this additional claim by also filing a timely substantive appeal (VA Form 9 or equivalent statement). 38 C.F.R. §§ 20.200, 20.202, 20.300, 20.301, 20.302, 20.303, 20.304, 20.305, and 20.306. Because of the holding in Manlincon v. West, 12 Vet. App. 238 (1999), the Board must remand, rather than refer, this claim. Additionally, the Board also finds additional development is required before the issue of entitlement to SMC for aid and attendance can be adjudicated. Special monthly compensation is payable to individuals who are permanently bedridden or are so helpless as a result of service-connected disability as to be in need of the regular aid and attendance of another person under the criteria set forth in 38 C.F.R. § 3.352(a). 38 U.S.C.A. § 1114(l); 38 C.F.R. § 3.350(b)(3). Determinations as to need for aid and attendance must be based on actual requirements of personal assistance from others. In making such determinations, consideration is given to such conditions as the following: Inability of the claimant to dress or undress himself or to keep himself ordinarily clean and presentable; the frequent need of the adjustment of any special prosthetic or orthopedic appliance which by reason of the particular disability cannot be done without aid; the inability of the claimant to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352(a). "Bedridden" will be a proper basis for the aid and attendance determination and is defined as that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that the claimant has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater-or-lesser part of the day to promote convalescence or cure will not suffice. It is not required that all of the disabling conditions enumerated above be found to exist before a favorable rating may be made. The particular personal functions that the claimant is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the evidence establish that the claimant is so helpless as to need regular aid and attendance, not that there be a constant need. Determinations that the Veteran is so helpless, as to be in need of regular aid and attendance will not be based solely on an opinion that the claimant's condition is such as would require him to be in bed. They must be based on the actual requirement of personal assistance from others. Id. The performance of the necessary aid and attendance service by a relative of the claimant or other member of his or her household will not prevent the granting of the additional allowance. 38 C.F.R. § 3.352(c). Special monthly compensation is also payable where the Veteran has a single service-connected disability rated as 100 percent and (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. This requirement is met when the Veteran is substantially confined as a direct result of service-connected disabilities to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. 38 U.S.C.A. § 1114(s); 38 C.F.R. § 3.350(i). Service connection is currently in effect for (1) posttraumatic stress disorder (PTSD), rated at 70 percent; (2) shrapnel wound of the chin and neck, rated at 10 percent; and, (3) diabetes mellitus, type II, rated at 10 percent. The Veteran has had a combined disability rating of 80 percent since March 31, 2009. Additionally, he is in receipt of a total disability rating based on individual unemployability (TDIU) due to his service-connected disabilities, primarily but not solely, his PTSD. The file contains several letters dated in April 2009 stating the Veteran had progressively become unable to care for himself and is bedridden. Similarly, an August 2009 VA examination to assess the severity of his diabetes mellitus shows that this disability effects his chores, shopping, exercise, sports, recreation, driving, travelling, feeding, bathing, dressing, toileting, and grooming. None of the other VA examinations of record address the Veteran's claims that he requires the aid and attendance of another person as a result of his service-connected disabilities. However, as the Veteran has not been provided a VA examination specifically addressing whether he needs the aid and attendance of another person due to service-connected disabilities versus nonservice-connected disabilities, one is required on remand before adjudication of this claim may proceed. Accordingly, this claim is REMANDED for the following additional development and consideration: 1. Associate, physically or electronically, any pertinent, outstanding records with the claims folder. 2. Afford the Veteran a VA examination to determine whether the Veteran's service-connected disabilities cause him to be housebound or in need of regular aid and attendance of another person. The examiner should indicate the underlying disability or disabilities causing each specific impairment of function noted. The examiner should also state an opinion as to whether any of these functional impairments, alone or in combination, render the Veteran housebound or in need or regular aid and attendance of another person, to include whether his service-connected PTSD renders him unable to protect himself from the hazards or dangers incident to his daily environment. 3. Then readjudicate the appeal. If the benefits sought on appeal remain denied, furnish to the Veteran supplemental statement of the case and afford him the requisite opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action. 4. Finally, send the Veteran an SOC concerning his claim of entitlement to an effective date earlier than March 31, 2009 for the grant of a TDIU. Advise him that he must file a timely substantive appeal (VA Form 9 or equivalent) in response to the SOC to perfect an appeal to the Board concerning this claim. 5. If, and only if, he perfects his appeal of this claim should it be returned to the Board for further appellate consideration. 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). _________________________________________________ T. MAINELLI 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) (2013). Department of Veterans Affairs