Citation Nr: 1553837 Decision Date: 12/28/15 Archive Date: 01/07/16 DOCKET NO. 14-02 391 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island ISSUES 1. Entitlement to a compensable initial evaluation for a right hip sprain with limitation of flexion. 2. Entitlement to an initial evaluation in excess of 10 percent for a right hip sprain with painful motion and limitation of extension. 3. Entitlement to a compensable initial evaluation for a left hip sprain with limitation of flexion. 4. Entitlement to an initial evaluation in excess of 10 percent for a left hip sprain with painful motion and limitation of extension. 5. Entitlement to an initial evaluation in excess of 10 percent for left lower extremity radiculopathy. 6. Entitlement to an initial evaluation in excess of 30 percent for scars of the forehead and right peri-orbital area. 7. Entitlement to an initial evaluation in excess of 10 percent for a painful scar of the right peri-orbital area. 8. Entitlement to an evaluation in excess of 20 percent for a low back disability. REPRESENTATION Appellant represented by: Massachusetts Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Juliano, Counsel INTRODUCTION The Veteran served on active duty from January 1999 to January 2003, and from October 2004 to July 2005. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. In August 2015, the Veteran testified before the undersigned acting Veterans Law Judge at a videoconference Board hearing at the RO in Boston, Massachusetts. A transcript of the proceeding has been associated with the claims file. This appeal was processed using the VBMS paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. The Board notes that there is no evidence indicating that the Veteran is unable to maintain substantially gainful employment due to his service-connected disabilities, and the Veteran has not alleged such. See, e.g., VA examination report, August 2012; Board hearing transcript, August 2015. Therefore, there is no implicit claim for entitlement to a total disability rating based on individual unemployability (TDIU). See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Board notes that a May 2013 rating decision also granted service connection for ulcers, and assigned a 10 percent evaluation, effective December 11, 2012. The Veteran filed a July 2013 notice of disagreement. A February 2014 statement of the case (SOC) was issued to the Veteran's last known address. No substantive appeal, however, was ever received within one year of the May 2013 rating decision. Therefore, that matter became final. The Board acknowledges that the Veteran prematurely filed a substantive appeal in January 2014. The RO replied in January 2014, however, notifying him that the substantive appeal was premature because no SOC had been issued. The Board adds that both the January 2014 notice letter and the February 2014 SOC were never returned to sender as undeliverable. Therefore, the Board finds that this matter is not presently before the Board. The issues of entitlement to reconsideration of an initial evaluation of 10 percent for ulcers (and otherwise entitlement to an increased rating), and to service connection for posttraumatic stress disorder, a right knee condition, a left knee condition, hearing loss, tinnitus, elevated liver enzymes, and an undiagnosed illness manifested by rashes, fatigue, joint and muscle pain, memory loss, stomach pain, and headaches, have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). See Correspondence, February 2015, March 2015, and September 2015. Therefore, the Board does not have jurisdiction over these matters, and they are referred to the AOJ for appropriate action. The appeal is REMANDED to the agency of original jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND A. Hips and Left Lower Extremity The Veteran's service-connected right hip strain and left hip strain are each currently assigned a noncompensable evaluation for limitation of flexion, and a separate 10 percent initial evaluation for painful motion with limitation of extension, effective May 4, 2011. His left lower extremity radiculopathy is currently assigned a 10 percent initial evaluation, effective May 4, 2011. The Veteran seeks higher initial ratings. The Veteran was provided with VA examinations most recently in August 2012. The Veteran testified at the August 2015 Board hearing, however, that his disabilities worsened since the August 2012 VA examinations. Accordingly, the Board finds that these matters should be remanded for a new VA examination to address the current severity of the Veteran's right hip strain, left hip strain, and left lower extremity radiculopathy. B. Scars and Low Back The September 2012 rating decision also granted service connection for scars of the forehead and right peri-orbital area, and assigned a 10 percent evaluation under Diagnostic Code 7800 (for one characteristic of disfigurement), effective May 4, 2011. Also, service connection was separately granted for a painful scar of the right peri-orbital area, which was assigned a 10 percent evaluation under Diagnostic Code 7804, effective May 4, 2011. A subsequent October 2012 rating decision increased the initial rating for scars of the forehead and right peri-orbital area from 10 percent to 30 percent under Diagnostic Code 7800 (based on two characteristics of disfigurement), effective May 4, 2011. Also, the September 2012 rating decision denied entitlement to an evaluation in excess of 20 percent for the Veteran's low back disability. The Veteran filed a July 2013 notice of disagreement, but no SOC has been issued for these matters. Therefore, these claims should be remanded so that the RO may issue a SOC on these claims. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). These claims will be returned to the Board after issuance of the SOC only if perfected by the filing of a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a new VA examination to address the current severity of right hip, left hip, and left lower extremity radiculopathy. The claims folder must be made available to the examiner, and pertinent documents therein should be reviewed by the examiner. All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail. A complete rationale for any opinions expressed should be provided. The examiner should note the Veteran's ranges of motion for his right hip and left hip. The examiner should also comment as to whether the Veteran experiences additional functional loss due to weakened movement, excess fatigability, incoordination, or pain on use. Such additional functional loss should be described in terms of the additional degrees of limitation of motion to the extent feasible. If it is not feasible to describe any additional degrees of loss of motion, the examiner should explain such. The examiner should also discuss regarding the left hip and right hip whether pain significantly limits functional ability during flare-ups or with repetitive use, and if so, such limitation should be noted in terms of the degrees of additional limitation of motion to the extent feasible. If it is not feasible to describe any additional degrees of loss of motion, the examiner should explain such. The examiner should also address the effect of the Veteran's left hip, right hip, and left lower extremity radiculopathy on his activities of daily living and on his ability to perform occupational tasks in a work like setting. All opinions must be supported by a detailed rationale in a typewritten report. 2. Issue the Veteran a Statement of the Case with regard to the issues of entitlement to higher initial ratings for the Veteran's scars, and entitlement to an evaluation in excess of 20 percent for his low back disability. If the benefits sought cannot be granted, the Veteran should be informed of his appellate rights and of the actions necessary to perfect an appeal on this issue. Thereafter, the issues are to be returned to the Board only if an adequate and timely substantive appeal is filed. 3. Then, readjudicate the Veteran's claims. If any claim remains denied, the Veteran should be provided a Supplemental Statement of the Case (SSOC). After the Veteran and his representative have been given the applicable time to submit additional argument, the claim(s) should be returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal 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). _________________________________________________ A. C. MACKENZIE Acting 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) (2015).