Citation Nr: 1517525 Decision Date: 04/23/15 Archive Date: 05/04/15 DOCKET NO. 11-15 217A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for right shoulder disability. 2. Entitlement to a disability rating in excess of 20 percent for bilateral hearing loss. 3. Entitlement to a disability rating in excess of 10 percent for tinnitus. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. J. In, Counsel INTRODUCTION The Veteran served on active duty from September 1950 to June 1952. The issue of entitlement to service connection for a right shoulder disability comes to the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which denied the benefit sought on appeal. The Veteran filed a claim for entitlement to a TDIU in July 2013. An April 2014 rating decision denied a disability rating in excess of 20 percent for bilateral hearing loss and a disability rating in excess of 10 percent for tinnitus, and proposed reduction of the disability ratings for PTSD from 70 percent to 30 percent, for IVDS of the left lower extremity from 20 percent to 10 percent, and for IVDS of the right lower extremity from 20 percent to 10 percent. That rating decision also denied the TDIU claim. In May 2014, the Veteran submitted a written statement indicating that he disagreed with the April 2014 rating decision. Since this statement was received well within the one year the Veteran had to appeal the April 2014 rating decision, the Board construes that it is, in actuality, a timely notice of disagreement (NOD) with regard to the bilateral hearing loss and tinnitus disability ratings, and TDIU claim, adjudicated in that rating decision. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.201 (2014); see also Gallegos v. Gober, 14 Vet. App. 50 (2000) (VA should liberally interpret a written communication that may constitute an NOD under the law), rev'd sub nom Gallegos v. Principi, 283 F. 3d 1309 (Fed. Cir. 2002) (the language of § 20.201 properly implemented 38 U.S.C.A. § 7105, and assuming that the [claimant] desired appellate review, meeting the requirement of § 20.201 was not an onerous task). The filing of a NOD initiates the appeal process. See Godfrey v. Brown, 7 Vet. App. 398, 408-10 (1995). As such, the issues of entitlement to a disability rating in excess of 20 percent for bilateral hearing loss, entitlement to a disability rating in excess of 10 percent for tinnitus, and entitlement to a TDIU, are listed on the title page of this decision. In the May 2014 notice of disagreement, the Veteran disagreed with the proposed reduction for the disability ratings for PTSD and for IVDS of the bilateral lower extremities. However, in a February 2015 rating decision, the RO determined that reduction of the disability ratings for PTSD and for IVDS of the bilateral lower extremities was not warranted and continued the 70 percent rating for PTSD and 20 percent rating for IVDS for each lower extremity. No appeal has been taken to date from that rating decision. In a March 2015 Informal Hearing Presentation, the Veteran's representative listed the issue of entitlement to an increased evaluation for degenerative joint disease of the thoracic spine (claimed as back condition), currently evaluated as 10 percent disabling. In this regard, a May 2011 rating decision granted service connection for degenerative joint disease of the thoracic spine (claimed as back condition) with an initial rating of 10 percent effective July 27, 2009. The Veteran filed a timely notice of agreement as to the initial rating assigned to the service-connected back disability in November 2011. Accordingly, the RO issued a Statement of the Case in February 2013 but the Veteran did not perfect an appeal. As such, this issue is not properly on appeal before the Board. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND A Statement of the Case (SOC) has not been issued addressing the issues of entitlement to a disability rating in excess of 20 percent for bilateral hearing loss, entitlement to a disability rating in excess of 10 percent for tinnitus, and entitlement to a TDIU. In Manlincon v. West, 12 Vet. App. 238 (1999), the Court held that where a NOD is filed but a SOC has not been issued, the Board must remand the claims to the AOJ so that a SOC may be issued. Accordingly, these issues must be remanded so that the AOJ may issue a SOC. With respect to his claim for entitlement to service connection for a right shoulder disability, the Veteran requested a videoconference hearing with a Veterans Law Judge in his June 2011 substantive appeal. He was scheduled for a hearing in March 2015 and the RO sent a hearing notification letter in January 2015. The Veteran subsequently failed to appear for the hearing. In the March 2015 Informal Hearing Presentation, the Veteran's representative stated that the Veteran did not receive the hearing notification letter and requested another opportunity for his hearing. Indeed, the record reflects that the January 2015 hearing notification letter was not delivered to the Veteran. Pursuant to 38 C.F.R. § 20.700 (2014), a hearing on appeal will be granted to an appellant who requests a hearing and is willing to appear in person. See also 38 U.S.C.A. § 7107 (West 2002) (pertaining specifically to hearings before the Board). As the RO schedules videoconference hearings, a remand of this matter to the RO for the requested hearing is warranted. 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). Expedited handling is requested.) 1. Obtain and associate with the claims file any updated VA treatment records for the Veteran from the VA Medical Center in Bonham, Oklahoma and any associated outpatient clinics, dated from October 2013 to the present. All attempts to secure this evidence must be documented in the claims file by the RO. 2. Issue a statement of the case, and notify the Veteran of his appellate rights, with respect to the April 2014 rating decision adjudication of the issues of entitlement to a disability rating in excess of 20 percent for bilateral hearing loss, entitlement to a disability rating in excess of 10 percent for tinnitus, and entitlement to a TDIU. 38 C.F.R. § 19.26 (2014). In the notice and statement of the case, remind the Veteran that a timely substantive appeal to the April 2014 rating decision to the extent it denied these issues must be filed if such issues are denied in the SOC in order to continue the appeal. 38 C.F.R. § 20.202 (2014). If, and only if, the Veteran perfects an appeal as to any of these issues, return these issues to the Board for appellate review. 3. Following completion of the above requested actions, the RO should schedule the Veteran for a videoconference Board hearing on the issue of entitlement to service connection for a right shoulder disability, and any other issue for which a timely appeal has been completed. The RO should properly notify the Veteran and his representative of the date and time of the hearing. See 38 C.F.R. § 20.704(b) (2014). After the hearing, the claims file should be returned to the Board in accordance with current appellate procedures. 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). _________________________________________________ U. R. POWELL 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).