Citation Nr: 1604433 Decision Date: 02/08/16 Archive Date: 02/18/16 DOCKET NO. 12-02 965 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for left knee impairment. 2. Whether new and material evidence has been received to reopen a claim for service connection for a testicular injury. 3. Entitlement to an initial compensable evaluation for degenerative disc disease C4-C6 (claimed as slipped disc, cervical spine). 4. Entitlement to an evaluation in excess of 10 percent for degenerative disc disease, lumbar spine (now claimed as slipped disc, lumbar spine). REPRESENTATION Appellant represented by: Barbara R. Lincoln, Agent ATTORNEY FOR THE BOARD M. Postek, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1977 to September 1978. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Board notes that the Veteran also initiated an appeal as to the denial of the request to reopen a claim of service connection for a lumbar spine disorder in the December 2008 rating decision; however, the RO granted the service connection claim in a December 2011 rating decision. In a December 2012 rating decision, the RO continued the evaluation for the lumbar spine disability based on a claim for increase and granted service connection for a cervical spine disability. The Veteran did challenge certain aspects of the December 2012 rating decision, as addressed in the remand section below. This appeal was processed using the Veterans Benefits Management System (VBMS). The Virtual VA electronic claims file does not contain any additional documents pertinent to the matter addressed in this decision. The Board acknowledges that the Veteran has initiated an appeal as to the issues of service connection for bilateral hearing loss, bilateral tinnitus, peripheral neuropathy of the bilateral upper and lower extremities, depression, erectile dysfunction, hypertension, headaches, colon cancer, and skeletal arthritis aching of the joints, as adjudicated in the August 2015 rating decision. See September 2015 notice of disagreement. On review, the Agency of Original Jurisdiction (AOJ) is still taking action on these issues. See September 2015 appeals election letter. As such, the Board will not take action on these issues at this time and refers them to the AOJ for appropriate action. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Regarding the requests to reopen the service connection claims, the Veteran was scheduled for a videoconference hearing before the Board in November 2015. The record shows that his representative notified VA the following day that she had been unable to attend the hearing because of bad weather and requested that the hearing be rescheduled. See November 2015 written submission. Based on the foregoing, the Veteran should be provided another opportunity to appear for a Board hearing. 38 C.F.R. §§ 20.704, 20.904 (2015). Regarding the increased evaluation claims, the record shows that the Veteran submitted a timely notice of disagreement with a December 2012 rating decision, challenging the evaluation assigned in connection with the grant of service connection for the cervical spine disability, as well as the continued lumbar spine disability evaluation. See January 2013 notice of disagreement. Thus, a remand is required for the AOJ to issue a statement of the case. See 38 C.F.R. § 19.9(c); Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: 1. The AOJ should reschedule the Veteran for a videoconference hearing with a Veterans Law Judge of the Board at the local RO in accordance with his request for the issues of whether new and material evidence has been received to reopen a claim for service connection for left knee impairment and whether new and material evidence has been received to reopen a claim for service connection for a testicular injury. See December 2011 statement of the case; January 2012 substantive appeal. The Veteran should be notified in writing of the date, time, and location of the hearing. After the hearing is conducted, or if the Veteran withdraws the hearing request or fails to report for the scheduled hearing, the claims file should be returned to the Board in accordance with appellate procedures. 2. The AOJ should issue a statement of the case addressing the issues of entitlement to an initial compensable evaluation for degenerative disc disease C4-C6 (claimed as slipped disc, cervical spine) and entitlement to an evaluation in excess of 10 percent for degenerative disc disease, lumbar spine (now claimed as slipped disc, lumbar spine). See January 2013 notice of disagreement. Thereafter, the Veteran should be given an opportunity to perfect an appeal by submitting a timely substantive appeal in response thereto. The AOJ should advise the Veteran that the claims file will not be returned to the Board for appellate consideration of these issues following the issuance of the statement of the case unless he perfects his appeal. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). _________________________________________________ J.W. ZISSIMOS 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).