Citation Nr: 1341966 Decision Date: 12/19/13 Archive Date: 12/31/13 DOCKET NO. 12-07 204 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia THE ISSUES 1. Entitlement to restoration of a 10 percent rating for residuals of a nasal fracture. 2. Entitlement to a higher rating for residuals of a nasal fracture. REPRESENTATION Veteran represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from June 1987 to January 1991. This appeal to the Board of Veterans' Appeals (Board) arose from December 2008 and May 2009 rating decisions by the RO. In a December 2008 rating decision (in conjunction with a claim for increase), the RO proposed to reduce the rating for the Veteran's residuals of a nasal fracture from 10 percent to a noncompensable rating. A May 2009 rating decision implemented this rating reduction, effective August 1, 2009. The Veteran filed a notice of disagreement (NOD) as to the proposed rating reduction in February 2009 and filed a NOD as to the implemented rating reduction in October 2009. The RO issued a statement of the case (SOC) in January 2012 and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in March 2012. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the Virtual VA claims processing system reveals VA treatment records dated through January 2012; such records were considered in the January 2012 supplemental statement of the case (SSOC). For the reasons expressed below, the matters on appeal are being remanded to the RO, via the Appeals Management Center (AMC) in Washington, D.C. VA will notify the Veteran when further action, on his part, is required. REMAND The Board's review of the claims file reveals that further RO action on the claims on appeal is warranted. As noted in the Introduction above, in a May 2009 rating decision, the RO reduced the rating for the Veteran's service-connected residuals of a nasal fracture from 10 percent to a noncompensable rating, effective August 1, 2009. A May 29, 2009 letter notified the Veteran of this decision along with his rights to appeal (enclosed in a VA Form 4107) if he disagreed with the outcome. The letter specifically notified the Veteran that a NOD must be filed within one-year. See 38 C.F.R. § 20.302 (2013). In October 2009, the Veteran submitted a written statement indicating his disagreement with the finding by the RO that his residuals of a nasal fracture had improved. In particular, the Veteran stated, "return my disability [rating] to ten percent and consider an increase to 20 percent." The Board finds that the October 2009 statement is a timely-filed NOD as to the reduction in rating for the service-connected residuals of a nasal fracture. See 38 C.F.R. § 20.201, 20.200, 20.302 (2013). However, the RO has yet to issue a SOC with respect to this matter, the next step in the appellate process. See 38 C.F.R. § 19.29 (2013); Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); Holland v. Gober, 10 Vet. App. 433, 436 (1997). Consequently, this matter must be remanded to the RO for the issuance of an SOC. Id. The Board emphasizes, however, that to obtain appellate review of any issue not currently in appellate status, a perfected appeal must be filed. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.200, 20.301, 20.302 (2013). On remand, the Veteran will have the opportunity to file a timely substantive appeal if he wishes to perfect an appeal as to this matter. As to the perfected issues of entitlement to a compensable rating for residuals of a nasal fracture, the Board notes that the decision with respect to the rating reduction may directly impact this issue. Favorable action on the restoration claim would change the rating for which an increase is sought. See 38 38 C.F.R. § 4.16(a) (2013). Thus, under the circumstances of this case, the Board finds that issue for which an appeal has been perfected is, effectively, inextricably intertwined with the issue of entitlement to restoration of a 10 percent rating for residuals of a nasal fracture, for which an appeal has not yet been perfected. See Parker v. Brown, 7 Vet. App. 116 (1994) and Harris v. Derwinski, 1 Vet. App. 180, 183 (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a veteran's claim for the second issue). Hence, any Board action on the claim for a higher rating for residuals of a nasal fracture would be premature at this juncture. In the interest of judicial economy and to avoid piecemeal litigation, the RO should retain the claims file until after the Veteran perfects an appeal of the restoration issue, or the time period for doing so expires, whichever occurs, first. The Board emphasizes, however, if the Veteran does not perfect an appeal as to the matter of restoration of the 10 percent rating for the residuals of a nasal fracture, then the matter of entitlement to a compensable rating for residuals of a nasal fracture should be returned to the Board for further appellate consideration. Accordingly, these matters are hereby REMANDED for the following action: 1. The RO should furnish to the Veteran an SOC with respect to the matter of entitlement to restoration of a 10 percent rating for the service-connected residuals of a nasal fracture, along with a VA Form 9, and afford him the appropriate opportunity to file a substantive appeal to perfect an appeal of this issue. The Veteran is hereby reminded that to obtain appellate review of any matter not currently in appellate status, a timely appeal must be perfected--for this claim, within 60 days of the issuance of the SOC. 2. The RO should not return the claims file to the Board until after the Veteran perfects an appeal as to the above-referenced rating restoration claim, or until the time period for doing so expires, whichever occurs first. 3. If the Veteran does not perfect an appeal as to the matter of entitlement to restoration of the 10 percent rating for residuals of a nasal fracture, then the matter of entitlement to a compensable rating for residuals of a nasal fracture, remains on appeal and should be returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2013).