Citation Nr: 1626863 Decision Date: 07/06/16 Archive Date: 07/14/16 DOCKET NO. 14-26 727 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an earlier effective date for the initial rating increase for a service-connected low back disability (currently characterized as bilateral pars defect with intervertebral disc syndrome (IVDS) and previously characterized as bilateral pars defect without spondylolisthesis of the lumbar spine). 2. Entitlement to an increased initial rating for a service-connected low back disability for the period through September 29, 2014, currently at 10 percent. REPRESENTATION Veteran represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Becker, Counsel INTRODUCTION The Veteran served on active duty from July 1987 to December 1991. This matter comes before the Board of Veterans' Appeals (Board) from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. As background, service connection for a low back disability was denied in November 2006 and April 2009 rating decisions by the RO in Huntington, West Virginia. The Veteran started an appeal of this latter determination. In a September 2011 rating decision, service connection was granted and an initial 10 percent rating was assigned effective November 7, 2008. He started an appeal of this determination, both with respect to the effective date and the initial rating. Specifically, he requested a 30 percent initial rating. In August 2013, the Atlanta RO issued a statement of the case (SOC) regarding the effective date for the grant of service connection. As the Veteran did not respond to this SOC, his appeal was not perfected. His initial rating was increased to 40 percent effective April 2, 2013, in the aforementioned August 2013 rating decision. He started and later perfected an appeal of that decision, but only with respect to the effective date. In October 2015, he testified before the undersigned at a hearing held at the aforementioned RO. This matter has been characterized generally as indicated above to account for its complex procedural history. This history consists primarily of a November 2013 Atlanta RO decision which continued the 10 percent initial rating after deeming the increase to 40 percent "incorrect." In an October 2014 rating decision, this RO essentially increased the rating to 40 percent effective September 30, 2014. Review of the Veteran's claims file by the Board at this time reveals that a REMAND of this single earlier effective date matter is warranted. An increased initial rating for the period through September 29, 2014, is addressed herein for a limited purpose. The Board does not have jurisdiction over this issue, but a REMAND nevertheless is warranted. REMAND Although the delay entailed by a remand is regrettable, a Board decision made now concerning the Veteran's entitlement to an earlier effective date for the initial rating increase for his service-connected low back disability would be premature. Undertaking additional development prior to such a decision is the only way to afford him every possible consideration. The Board currently does not have jurisdiction to make a decision regarding an increased initial rating higher than 10 percent for the Veteran's service-connected low back disability for the period through September 29, 2014, because the issue is not on appeal. However, additional development is required to ensure that proper procedure is followed. I. SOC An appeal begins with a notice of disagreement (NOD), a written communication expressing dissatisfaction with and a desire to contest a determination. 38 U.S.C.A. § 7105(b)(2) (West 2014); 38 C.F.R. § 20.201 (2015); Anderson v. Principi, 18 Vet. App. 371 (2004). A NOD must be filed within one year from the date notice of the determination was mailed. 38 U.S.C.A. § 7105(b)(1) (West 2014); 38 C.F.R. § 20.302(a) (2015). Upon the filing of a timely NOD, a SOC shall be issued. 38 U.S.C.A. § 7105(d)(1) (West 2014); 38 C.F.R. § 19.29 (2015). The Board shall remand for issuance of a SOC if one has not been recognized. Manlincon v. West, 12 Vet. App. 238 (1999). Indeed, a SOC is required because filing a timely substantive appeal (Form 9) in response thereto perfects the appeal. 38 U.S.C.A. §§ 7105(a, (d)(3)) (West 2014); 38 C.F.R. §§ 20.200, 20.202 (2015). As indicated above, the Veteran started an appeal of the initial 10 percent rating assigned to his service-connected low back disability by the September 2011 rating decision. He did so by filing a timely NOD requesting a 30 percent initial rating in November 2011. It was recognized as such by the RO. Neither the August 2013 SOC nor any other SOC addressed this issue, however. Instead, the August 2013 rating decision stated that it was favorably resolved. The reasoning was that his initial rating was increased to 40 percent, even higher than what the Veteran requested, therein. This reasoning is erroneous. Though the increase was to an initial rating higher than sought, it covers only a portion of the period under appeal. The Veteran did not perfect his appeal as to the effective date for the grant of service connection. So, this period on appeal begins on the assigned effective date of November 7, 2008. The August 2013 rating decision granted the increased initial rating effective only as of April 2, 2013. Via the November 2013 and October 2014 rating decisions, this effective date was changed to September 30, 2014. As such, an SOC addressing an increased initial rating for the period through September 29, 2014, is required for the Veteran to be afforded an opportunity to perfect his appeal. There is no indication from the claims file that the RO has recognized this requirement. The Veterans Appeals Control and Locator System (VACOLS) further show no indication in this regard. On remand, a SOC must be issued. II. Inextricably Intertwined Issues are inextricably intertwined when a determination on one could have a significant impact on the outcome of the other. Harris v. Derwinski, 1 Vet. App. 180 (1991). Adjudication of the impacted issue should be deferred until the issue that may cause the impact has been adjudicated. Id. Adjudication of the Veteran's entitlement to an earlier effective date for the initial rating increase for his service-connected low back disability cannot be fully informed until after adjudication of an increased initial rating for a service-connected low back disability for the period through September 29, 2014. An increase in the initial rating, whether to 40 percent or otherwise, indeed could be granted as far back as November 7, 2008. The effective date may change, in other words. Any such change clearly would impact the earlier effective date determination. This determination, in sum, must be deferred until after a determination is made on an increased initial rating. Given the above, a REMAND is directed for the following: 1. Issue an SOC concerning the Veteran's claim for an increased initial rating for a service-connected low back disability for the period through September 29, 2014, currently at 10 percent. Provide a copy of the SOC, along with a notice letter of how to continue the appeals process, to the Veteran and his representative. Place a copy of both in claims file. Return to the Board only if the appeal is timely perfected. 2. Then, readjudicate the Veteran's claim of entitlement to an earlier effective date for the initial rating increase for a service-connected low back disability. Issue a rating decision if the determination made is partially or wholly favorable to him. Issue a supplemental statement of the case (SSOC) if it is partially or wholly unfavorable to him. Place a copy of the rating decision and/or SSOC in the claims file. Allow the requisite time period for a response to a SSOC by the Veteran and his representative before returning to the Board. No action is required of the Veteran until he is notified by VA. Yet he is advised that he has the right to submit additional evidence and argument, whether by himself directly or through his representative on his behalf, with respect to the issues remanded herein. Kutscherousky v. West, 12 Vet. App. 369 (1999). They must be afforded prompt treatment. Indeed, all remands by the Board or the United States Court of Appeals for Veterans Claims (Court) must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Only a decision of the Board is appealable to the Court. 38 U.S.C.A. § 7252 (West 2014). This remand is in the nature of a preliminary order and does not constitute a decision by the Board. 38 C.F.R. § 20.1100(b) (2015).