Citation Nr: 1537232 Decision Date: 08/31/15 Archive Date: 09/04/15 DOCKET NO. 12-03 735 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an increased disability rating in excess of 10 percent prior to April 29, 2015, for a right shoulder disability, and a rating in excess of 20 percent beginning April 29, 2015. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD C. Bosely, Counsel INTRODUCTION The Veteran served on active duty from February 1986 to March 1995 and from October 2001 to November 2002. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The case was subsequently transferred to the RO in Atlanta, Georgia, which retains jurisdiction. The Board remanded the matter in April 2014 and again in January 2015. On remand, the RO issued a rating decision in April 2015 granting a 20 percent rating effective April 29, 2015. This award has not resolved the appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Murphy v. Shinseki, 26 Vet. App. 510, 514 (2014). The April 2015 rating decision re-characterized the service-connected disability. Prior to April 29, 2015, the disability was characterized as postoperative residuals of surgery on the right shoulder due to dislocation (and rated under diagnostic code (DC) 5201). Since that date, the disability has been recharacterized as impairment of the right humerus (and rated under DC 5202). The underlying situs of the service-connected disability in the right shoulder has not changed. See Read v. Shinseki, 651 F.3d 1296, 1300-01 (Fed. Cir. 2011). In an April 2014 decision, the Board denied an effective date earlier than March 27, 2009, for the assignment of a 10 percent rating for right shoulder disability. The Veteran did not appeal the Board's decision to the Court of Appeals for Veterans Claims (Court or CAVC). Accordingly, that issue is closed, and no further action may be taken as to that issue. More recently, in August 2015, the Veteran filed a notice of disagreement (NOD) disagreeing with the effective date for the award of a 20 percent rating for the right shoulder disability. This issue is not foreclosed by the Board's April 2014 decision, because there is a period of time from March 27, 2009, until April 29, 2015, during which a 20 percent rating is not in effect. Although not foreclosed, this appeal for an earlier effective date is ultimately subsumed by the increased rating claim on appeal because the grant of a 20 percent rating from April 29, 2015, represents an award of a staged rating during the pendency of the appeal. Resolution of the appeal for an increased rating will necessarily require adjudication of the earlier effective date issue. See AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Fenderson v. West, 12 Vet App 119, 125-27 (1999); accord 38 C.F.R. § 3.400(o); cf. Hazan v. Gober, 10 Vet. App. 511 (1997) (generally, a claim for an earlier effective date for the award of a particular disability rating is a distinct issue appealable to the Board). Accordingly, the earlier effective date issue is not listed on the title page of this decision as a separately appealed issue. In November 2011, the RO assigned a separate, noncompensable (zero percent) rating for peripheral neuropathy right shoulder (claimed as tingling sensation) associated with postoperative residuals of surgery on the right shoulder due to dislocation to include scarring. (Notice of this decision was sent to the Veteran in December 2011.) At present, it does not appear that this issue is within the scope of the appeal. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND This matter must be remanded because the Veteran's authorized representative has effectively been denied the opportunity to participate at all stages of the appeal. The latest RO determinations (a May 2015 supplemental statement of the case (SSOC)) and a July 2015 rating decision) were provided to his representative, NCDVA. However, NCDVA was not given the opportunity to review the matter and offer evidence and/or argument prior to recertification to the Board. Plus, the Board's 90-day letter, which was sent to the Veteran in August 2015, was not sent to NCDVA. (The letter offers 90 days or until the Board issues a decision to change representation or submit additional evidence or argument.) The Board is required by 38 C.F.R. § § 1.525(d) to "suppl[y]" a veteran's authorized representative, as defined by 38 C.F.R. § 14.629, "with a copy of each notice to the claimant respecting the adjudication of the claim." That regulatory requirement of notice can only sensibly be construed to require that the notice to counsel be timely, which requires, at a minimum, notice before the expressly stated deadline has passed. See Carter v. McDonald, No. 2014-7122, 2015 WL 4429842, at *3 (Fed. Cir. July 21, 2015). Moreover, an appellant will be accorded full right to representation in all stages of an appeal by a recognized organization, attorney, agent, or other authorized person. 38 C.F.R. § 20.600 (2015). Here, this defect has not been cured because NCDVA has not yet had the opportunity to review all relevant actions. Because this has effectively denied the Veteran his right to representation at all stages of the appeal, the matter must be returned to the AOJ to cure this due process defect. Accordingly, the case is REMANDED for the following action: 1. Undertake all action needed to afford the Veteran's authorized representative the opportunity to review this matter and offer any evidence or argument. 2. Then, undertake any further action needed as a consequence of the representative's review. If needed, furnish the Veteran and his representative an appropriate supplemental statement of the case (SSOC) that includes clear reasons and bases for all determinations. The Veteran and his representative should be afforded the appropriate time period to respond before returning the matter to the Board for appellate disposition. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ MICHAEL E. KILCOYNE 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).