Citation Nr: 1606795 Decision Date: 02/23/16 Archive Date: 03/01/16 DOCKET NO. 13-28 151A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an initial compensable rating for diabetic retinopathy of the right eye. (The Veteran's motions to revise or reverse September 2012 and June 2010 decisions of the Board on the basis of clear and unmistakable error are addressed under separate cover.) ATTORNEY FOR THE BOARD J. Rutkin, Counsel INTRODUCTION The Veteran served on active duty from September 1967 to September 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) dated in November 2013 that assigned an initial noncompensable (i.e., 0 percent) rating for diabetic retinopathy of the right eye. In June 2015, the RO also issued a rating decision implementing the Board's April 2015 grant of a TDIU. The RO assigned an effective of September 18, 2009 for the award. The Veteran filed a statement in January 2016 expressing his disagreement with the effective date of September 18, 2009 that was assigned for the TDIU. Generally, the filing of a notice of disagreement (NOD) places a matter into appellate status, requiring the Board to remand for issuance of a statement of the case (SOC). See 38 C.F.R. § 3.103(f), 19.9(c) (2015). However, effective from March 24, 2015, VA will only accept an expression of dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction (AOJ) as an NOD if it is submitted on a standardized form provided by VA for the purpose of appealing the decision, in cases where such a form is provided. See 38 C.F.R. § 20.201 (from March 24, 2015); also 79 Fed. Reg. 57698; VA Form 21-0958, "NOTICE OF DISAGREEMENT." Here, the RO informed the Veteran that, if he did not agree with the decision, he needed to complete, sign, and return an (attached) VA Form 21-0958, Notice of Disagreement. See RO letter to the Veteran, dated July 3, 2015. At present, he has not returned the VA Form 21-0958, Notice of Disagreement, with respect to his disagreement with the June 2015 rating decision. Because the statement filed by the Veteran in January 2016 cannot constitute a valid NOD, the matter is not presently in appellate status before the Board and the Board can take no further action on the matter. See 38 C.F.R. § 20.201(a) (as amended September 25, 2014); see also 38 C.F.R. § 19.9(c) (2015). The Veteran submitted claims for increased ratings for all service-connected disabilities as well as service connection claims for additional disabilities on a secondary basis (the disabilities were not specified) in a January 2016 VA Form 21-526b. These claims have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. See 38 C.F.R. § 19.9(b) (2015). The Veteran's motions to revise or reverse September 2012 and June 2010 decisions of the Board on the basis of clear and unmistakable error are addressed under separate cover pursuant to BVA Directive 8430, "Board Decision Preparation and Processing: Policies and Responsibility Assignments," ¶ 14(c)(10)(a)(7). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND In April 2015, the Board remanded the initial evaluation of the Veteran's service-connected diabetic retinopathy of the right eye for issuance of a statement of the case (SOC), finding that the Veteran had timely filed a notice of disagreement (NOD) with the initial noncompensable rating assigned this disability in a November 2013 rating decision. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). An SOC has not yet been issued. The Veteran must also be notified of his right to de novo review of this issue by a Decision Review Officer (DRO) in accordance with 38 C.F.R. § 3.2600 (2015) and provided 60 days from the date of mailing of the notice to request such a review. After issuance of the SOC, if the Veteran wishes to proceed with the appeal, he must file a timely substantive appeal in order for this issue to be certified to the Board. See 38 C.F.R. §§ 20.200, 20.202, 20.302 (2015); Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). Accordingly, the case is REMANDED for the following action: 1. Send the Veteran notice of his right to elect de novo review of the initial noncompensable evaluation of diabetic retinopathy of the right eye by a Decision Review Officer (DRO), or to proceed with the traditional appeal process. 2. After the Veteran has responded to the notice informing him of his right to de novo review by a DRO, or after the time period for response has elapsed, issue a statement of the case (SOC) addressing the initial noncompensable evaluation of diabetic retinopathy of the right eye, with a copy sent to the Veteran. He must also be informed that a timely and adequate substantive appeal is required in order to perfect an appeal of this issue to the Board. The Veteran 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). These issues 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). _________________________________________________ P. M. DILORENZO 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).