Citation Nr: 1514020 Decision Date: 04/01/15 Archive Date: 04/09/15 DOCKET NO. 07-12 744 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to compensation under 38 U.S.C.A. § 1151 for residuals of L4-5 lumbar disc surgery. 2. Entitlement to service connection for depressive disorder. 3. Entitlement to an increased rating for dyschezia with abnormal anal sphincter relaxation with attempted defecation. 4. Entitlement to an effective date earlier than August 16, 2011 for the grant of a 30 percent evaluation for dyschezia with abnormal anal sphincter relaxation with attempted defecation. 5. Entitlement to a total rating based on unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant, S.S., and C.B., M.D. ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION The Veteran had active service from August 1970 to August 1973. This matter came before the Board of Veterans' Appeals (Board) from a June 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This matter also comes before the Board from an April 2012 rating decision by the St. Petersburg RO which granted an increased rating of 30 percent for dyschezia and assigned an effective date of August 16, 2011; and an October 2013 rating decision by the RO that denied service connection for depressive disorder and a TDIU. The Veteran and two additional witnesses provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in June 2009. A transcript of this hearing has been associated with the Veteran's VA claims folder. In August 2009, the Board remanded the appeal with respect to compensation under 38 U.S.C.A. § 1151 for residuals of L4-5 lumbar disc surgery for further development. In August 2011, the Board requested a medical expert opinion from a member of the Veterans Health Administration (VHA) in accord with VHA Directive 20006-019 (April 3, 2006), 38 U.S.C.A. §§ 5103A, 7109 and 38 C.F.R. § 20.901. The requested opinion was subsequently promulgated in September 2011, the Veteran was provided with a copy of this opinion, and was given 60 days in which to send any additional evidence or argument regarding the case pursuant to 38 C.F.R. § 20.903. In January 2012, the Board denied the Veteran's claim of entitlement to compensation under 38 U.S.C.A. § 1151 for residuals of L4-5 lumbar disc surgery. He appealed to the U.S. Court of Appeals for Veterans Claims (Court). In July 2012, the Court granted the parties' Joint Motion for Remand, and returned the appeal to the Board for action consistent with the joint motion. In December 2013, the Board requested an addendum report from the VHA medical expert who had reviewed the record and provided an opinion in September 2011. The requested opinion was provided to the Veteran and his representative and he was given 60 days to respond with additional evidence or argument. During the pendency of the § 1151 claim before the Board and Court, the Agency of Original Jurisdiction (AOJ) issued rating decisions in April 2012 and October 2013. As noted, the April 2012 rating decision granted an increased rating of 30 percent for dyschezia and assigned an effective date of August 16, 2011; and the October 2012 rating decision denied service connection for depressive disorder and a TDIU. The Veteran has submitted notices of disagreement with respect to these rating decisions. It is also noted that the Veteran has raised the issue of entitlement to erectile dysfunction under the provisions of 38 U.S.C.A. § 1151. See June 2009 Board hearing transcript, pp. 16-17. As this matter has not yet been adjudicated by the AOJ, it is referred to the AOJ for consideration in the first instance. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND In September 2014, the Veteran's attorney submitted a written brief and the report of a private physician to the Board pertaining to the issue of compensation under § 1151. These materials were not accompanied by a waiver of AOJ review. In January 2015, the Board contacted the Veteran and explained that without a waiver, the appeal would be remanded to the AOJ for review of the newly submitted evidence. He responded in January 2015 that he wished the appeal to be remanded for AOJ review. With respect to the remaining issues, the Board notes that in response to the April 2012 rating decision that granted an increased rating of 30 percent for dyschezia and assigned an effective date of August 16, 2011, the Veteran submitted a notice of disagreement (NOD) in March 2013 with respect to the evaluation and effective date. In response to the October 2013 rating decision that denied service connection for depressive disorder and a TDIU, the Veteran submitted a NOD in July 2014. The filing of a NOD places a claim in appellate status. Therefore, a statement of the case regarding these issues must be provided to the appellant. As such, these issues must be remanded. Manlincon v. West, 12 Vet. App. 239, 240- 41 (1999). In light of the above discussion, the Board has determined that additional action by the AOJ is necessary. Accordingly, the case is REMANDED for the following: 1. Issue the appellant a statement of the case on the issues of entitlement to service connection for depressive disorder, a higher evaluation for dyschezia, an effective date earlier than April 16, 2011 for the assignment of a 30 percent evaluation for dyschezia, and a TDIU. If the appellant perfects an appeal by submitting a timely and adequate substantive appeal, the AOJ should return the claims to the Board for the purpose of appellate disposition. 2. With respect to the issue of entitlement to compensation under § 1151, ensure that all necessary development has been properly accomplished, and readjudicate the claim. If the benefit sought on appeal remain denied, the Veteran and his representative should be issued a supplemental statement of the case (SSOC) which addresses all relevant actions taken on the claim, to include a summary of the evidence and applicable law and regulations considered, since the issuance of the last SSOC. The Veteran should be given the opportunity to respond to the SSOC before the case is returned to the Board. 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 2014). _________________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).