Citation Nr: 1619075 Decision Date: 05/11/16 Archive Date: 05/19/16 DOCKET NO. 09-49 276 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for obstructive sleep apnea. 2. Entitlement to an increased rating for service-connected lumbosacral strain with mild degenerative spondylosis, to include the question of the propriety of the reduction in rating from 30 percent to 10 percent, effective September 30, 2012. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from January 1978 to August 1983. This appeal to the Board of Veterans' Appeals (Board) arose from a March 2009 rating decision in which the RO, inter alia, denied an increased rating for service- connected lumbosacral strain with mild degenerative spondylosis (hereinafter "service-connected lumbosacral strain"). In April 2009, the Veteran filed a notice of disagreement (NOD). In October 2009, the RO issued a statement of the case (SOC), and the Veteran subsequently filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals) in November 2009. In a March 2012 rating decision, the RO proposed to reduce the Veteran's 30 percent rating to 10 percent, and the Veteran was notified of the RO's proposed action in April 2012. In a July 2012 rating decision, the RO effectuated the rating reduction from 30 percent to 10 percent for service connected lumbosacral strain, effective September 30, 2012. Because the RO reduced the Veteran's disability ratings while he was seeking an increased rating, the matter of the propriety of the reduction must also be addressed. See Dofflemyer v Derwinski, 2 Vet App 277, 279-80 (1992). In April 2014, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is reflected in a paperless electronic file associated with the Veteran. The Veteran's claims file has been converted into a paperless claims file via the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. All records in such files have been reviewed by the Board. For the reasons expressed below, the appeal is being remanded to the agency of original jurisdiction (AOJ). VA will notify the Veteran when further action, on his part, is required REMAND Unfortunately, the Board finds that further AOJ action in this appeal is warranted, even though such will, regrettably, further delay an appellate decision on these matters. At the outset, as indicated above, these matters were previously remanded in November 2014 for additional development. In pertinent part, the Board had noted that in a March 2012 rating decision, the RO had proposed to reduce the Veteran's 30 percent rating for the service-connected lumbosacral strain disability to 10 percent, on the basis that clear and unmistakable error (CUE) had been committed in a March 2009 rating decision that continued a 30 percent rating for the service connected lumbosacral strain disability. In this regard, the RO determined that the cervical spine criteria had incorrectly been applied in evaluating the service- connected lumbosacral strain disability. See March 2012 rating decision. Accordingly, in the July 2012 rating decision, the RO reduced the rating of the service-connected lumbar spine disability from 30 percent to 10 percent, effective September 30, 2012. While the RO determined that there was CUE in the March 2009 rating decision that continued a 30 percent rating for the service-connected lumbosacral strain disability, the Board pointed out that the RO had not addressed whether there was CUE in the January 2006 rating decision that awarded the increased 30 percent rating for service connected lumbosacral strain-which the Board noted apparently had also been awarded by incorrectly applying the cervical spine criteria to evaluate the service-connected lumbosacral strain disability. See January 2006 rating decision. As such, the Board concluded that the RO's failure to address whether CUE had been committed in the January 2006 rating decision impaired its ability to assign the proper disability rating(s) for the service-connected lumbosacral strain disability for the entire appeal period, i.e., from July 2007 (which includes a one year "look back" period prior to the date of receipt of the increased rating claim in July 2008) to the present. The Board explained that on the basis of the current record, it would be required to adjudicate (1) whether a rating greater than 30 percent is warranted for the period prior to September 30, 2012, (2) whether the reduction from 30 to 10 percent was proper, and (3) whether an increased rating is warranted from September 30, 2012. If the Board was to find that the reduction was proper-i.e., that there was CUE in the continuation of the 30 percent rating for the service- connected lumbosacral strain-then the Board would be placed in the difficult position of determining whether a rating greater than 30 percent rating (which the RO has already determined was continued in error) is warranted for that disability for the period prior to the reduction. The Board, therefore, determined that a remand was necessary, in part, for the AOJ to address in the context of the claim for higher rating, to include the matter of the propriety of the reduction in rating effective September 30, 2012, whether there was CUE in the January 2006 rating decision in which an increased, 30 percent rating for service-connected lumbosacral strain was awarded. In this regard, the Board specifically directed the AOJ to re-adjudicate the claim for increase to include a discussion of whether there was CUE in the 2006 award of an increased, 30 percent rating, and the propriety of the reduction in rating from 30 to 10 percent, effective September 30 2012. Notwithstanding the above, a review of the Veteran's claims file reveals that, on remand, the AOJ did not address whether there was CUE in the 2006 award of an increased 30 percent rating. A remand by the Board confers upon a claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, the Board has no alternative but remand this matter for the AOJ can comply with its November 2014 instructions. As a final matter, the Board points out that, in an October 2015 rating decision, the AOJ, inter alia, denied entitlement to service connection for obstructive sleep apnea. In March 2016, the Veteran filed a NOD. However, the RO has yet to issue a SOC with respect to this matter, the next step in the appellate process. See 38 C.F.R. § 19.29 (2015); Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); Holland v. Gober, 10 Vet. App. 433, 436 (1997). Consequently, this matter must be remanded to the AOJ for the issuance of a SOC. Id. The Board emphasizes, however, that to obtain appellate review of any issue not currently in appellate status, a perfected appeal must be filed. See 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.200, 20.201, 20.202 (2015). Accordingly, these matters are hereby REMANDED for the following action: 1. Furnish the Veteran and his representative a SOC on the Veteran's claim of entitlement to service connection for obstructive sleep apnea, along with a VA Form 9, and afford them an appropriate opportunity to submit a substantive appeal to perfect an appeal on that issue. The Veteran and his representative are reminded that to obtain appellate review of any matter not currently in appellate status, a timely appeal must be perfected-here, as regards the claim of entitlement to service connection for obstructive sleep apnea -within one year of mailing of the notice of the rating decision denying the claim, or within 60 days of the issuance of the SOC, whichever period ends later. 2. Re-adjudicate the claim for increase to include discussion of whether there was CUE in the 2006 award of an increased, 30 percent rating, and the propriety of the reduction in rating from 30 to 10 percent, effective September 30 2012, in light of all pertinent evidence and legal authority. 3. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall, 11 Vet. App. at 271. 4. If the benefit sought on appeal remains denied, furnish the Veteran and his representative an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them an appropriate time period for response. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999)). This REMAND must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate (CONTINUED ON NEXT PAGE) action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2015).