Citation Nr: 1610549 Decision Date: 03/16/16 Archive Date: 03/23/16 DOCKET NO. 12-04 930 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 3. Whether new and material evidence has been received to reopen a claim of service connection for cardiac disability, to include ischemic heart disease (IHD). 4. Entitlement to service connection for acid reflux. 5. Entitlement to service connection for hypertension. 6. Entitlement to service connection for elevated cholesterol. 7. Entitlement to service connection for urinary frequency with pyuria. 8. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, to include the feet. 9. Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities. 10. Entitlement to service connection for cataracts. 11. Entitlement to an initial rating in excess of 20 percent for diabetes mellitus. REPRESENTATION Veteran represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD C. Fields, Counsel INTRODUCTION The Veteran had active service in the United States Marine Corps from February 1963 to January 1967, including in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions in August 2009, January 2012, and July 2014 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran has changed his appointed representative several times during the course of this appeal. In January 2016, VA received a completed and acknowledged appointment of the above-listed representative (VA Form 21-22), with no limits on representation. Thus, the prior forms were revoked. Although the RO adjudicated the issue as entitlement to service connection for PTSD, the medical evidence revealed various diagnoses of acquired psychiatric disorders. Thus, the issue on appeal has been recharacterized as stated above to encompass all currently diagnosed acquired psychiatric disorders, including but not limited to PTSD. Clemons v. Shinseki, 23 Vet. App. 1, 4-6 (2009). Similarly, the issue of service connection for IHD has been recharacterized to contemplate all currently diagnosed cardiac disabilities. Id.; Brokowski v. Shinseki, 23 Vet. App. 79 (2009). In an August 2009 rating decision, the RO denied service connection for hearing loss and tinnitus. In October 2009, the Veteran (through his prior appointed representative) requested reconsideration of that determination and submitted additional pertinent evidence, including a private medical opinion linking the disabilities to service. The RO issued another rating decision in March 2010, which granted service connection for tinnitus, but denied service connection for hearing loss, stating that the prior claim had been reopened and denied on the merits. The Veteran did not appeal from any downstream issues regarding tinnitus, but he submitted a notice of disagreement with the denial of his hearing loss claim. Nevertheless, VA had received additional evidence that pertained to a reason for the prior denial within one year after the August 2009 rating decision, i.e., new and material evidence within the appeal period from the initial denial. Therefore, the August 2009 rating decision did not become final, and the original claim required de novo review considering the additional evidence. See 38 C.F.R. §§ 3.156(b), 20.200, 20.302 (2015). This issue is characterized accordingly herein. In a January 2012 rating decision, the RO denied service connection for PTSD and IHD. The Veteran submitted a notice of disagreement for both denials, a statement of the case (SOC) was provided in June 2012, and the Veteran submitted a substantive appeal (VA Form 9) in March 2013, which was accepted as timely. Thereafter, in July 2013, VA received a written statement from the Veteran requesting to withdraw his appeal as to arteriosclerotic heart disease, which the RO had characterized as IHD; but to continue the pending appeal for the denial of service connection for hearing loss and a psychiatric disorder. The Veteran may withdraw any claim or issue on appeal at any time prior to promulgation of a decision by the Board, and he clearly did so in this case. 38 C.F.R. § 20.204 (2015). As the Veteran subsequently appealed from a claim to reopen this issue, as set forth below, a formal dismissal of this issue is not necessary. See 38 U.S.C.A. § 7105(d)(5) (West 2014) (providing that the Board "may" dismiss an appeal that fails to allege specific error of fact or law in the determination being appealed). In April 2014, the Veteran submitted a claim to reopen the claim for service connection for IHD, along with additional evidence from his private provider to show a diagnosis, which was a reason for the prior denial. In a July 2014 rating decision, the RO reopened the previously denied claim but denied it on the merits. In September 2014, the Veteran (through his prior appointed representative) submitted a notice of disagreement from this denial. See 38 C.F.R. § 20.201 (2014); Cf. 79 Fed. Reg. 57,696 (Sept. 25, 2014) (effective March 24, 2015) (revising 38 C.F.R. § 20.201 to require that a notice of disagreement be filed on a standard VA form). Accordingly, because the original claim was withdrawn, this issue is characterized as a claim to reopen, as listed on the first page herein. Also in the July 2014 rating decision, the RO granted service connection for diabetes mellitus and assigned an initial 20 percent rating for such disability, effective September 10, 2013. The RO also denied service connection for other conditions as listed on the first page of this decision, which the Veteran claimed as secondary to diabetes. In September 2014, the Veteran (through his prior appointed representative) submitted a notice of disagreement from the denial of service connection for these conditions, and from the initial rating assigned for diabetes. Id. In the September 2014 notice of disagreement, the Veteran (through his prior representative) requested a formal hearing before a Decision Review Officer (DRO) at the RO for these issues. A DRO hearing was scheduled for a date in July 2015; however, the Veteran's representative indicated in June 2015 that a DRO hearing was no longer desired, and submitted written arguments instead. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran requested a Board hearing at the RO (a Travel Board hearing) for the issues of service connection for hearing loss and acquired psychiatric disorder, to include PTSD. In his February 2012 substantive appeal (VA Form 9) as to the denial of service connection for hearing loss, the Veteran requested a Travel Board hearing. Although he initially indicated in an attached form that he desired both a DRO hearing and a Travel Board hearing, clarification was obtained in a June 2012 form and a June 2012 phone conversation with his prior representative that only a Board hearing was desired. In his January 2013 appeal (VA Form 9) regarding PTSD, the Veteran checked that he did not desire a hearing; however, his then representative indicated in June 2015 that the Veteran requested a Travel Board hearing. Therefore, these issues must be remanded to schedule the requested hearing. 38 C.F.R. § 20.704(d) (2015). Further, as discussed above, VA received a timely notice of disagreement from the July 2014 rating decision as to the initial rating assigned for diabetes; the denial of service connection for acid reflux, hypertension, elevated cholesterol, urinary frequency with pyuria, peripheral neuropathy of the bilateral upper and lower extremities to include the feet, and cataracts; and the denial of a claim to reopen for service connection for cardiac disability, to include IHD. These issues are under the Board's jurisdiction; however, there is no discretion and the case must be remanded for the AOJ to provide a statement of the case (SOC) for these issues to satisfy due process requirements. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: 1. Schedule a Board hearing at the RO for the issues of service connection for hearing loss and for acquired psychiatric disorder, to include PTSD. 2. Provide a statement of the case on the issues of entitlement to an initial rating in excess of 20 percent for diabetes; service connection for acid reflux, hypertension, elevated cholesterol, urinary frequency with pyuria, peripheral neuropathy of the bilateral upper and lower extremities to include the feet, and cataracts; and a claim to reopen for service connection for cardiac disability, to include IHD. These issues should not be certified to the Board unless a timely substantive appeal is received. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. 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 2015). _________________________________________________ Mark D. Hindin 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).