Citation Nr: 1638512 Decision Date: 09/29/16 Archive Date: 10/13/16 DOCKET NO. 13-06 460A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for right knee disorder. 2. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for left knee disorder. 3. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for right foot disorder. 4. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for left foot disorder. 5. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for hepatitis C. 6. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for ulcer. 7. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for drug and alcohol use. 8. Entitlement to service connection for posttraumatic stress disorder (PTSD). 9. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Elizabeth F. Lunn, Attorney ATTORNEY FOR THE BOARD T. Carter, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from September 1979 to September 1982. This case comes before the Board of Veterans' Appeals (Board) on appeal from June 2010 and May 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In October 2012, the Veteran testified at a hearing before a Decision Review Officer (DRO). In a March 2013 substantive appeal (VA form 9), the Veteran requested a Travel Board hearing at the local RO for the issues of whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for drug and alcohol use, service connection for PTSD, and entitlement to a TDIU. The Travel Board hearing in Winston-Salem, North Carolina was scheduled for December 2015. On the day of the scheduled hearing, the Veteran's attorney submitted a VA Form 21-4138 noting the Veteran was unable to attend the hearing. As of this date, the Veteran nor his attorney has indicated a desire to reschedule the Travel Board hearing; therefore, the Board finds there is no hearing request pending at this time. See 38 C.F.R. § 20.702 (d) (2015). In the June 2010 VA rating decision, the RO denied entitlement to a compensable raring for removal of cyst on left cheek. While the Veteran expressed disagreement for this issue in July 2010 and October 2010, he expressly stated in the March 2013 VA Form 9 that "[he is] not appealing the decision on [his] left cheek cyst." As a result, that issue is not currently before the Board for appellate review. See 38 C.F.R. § 20.200 (2015). Before reaching the merits of the claims for right knee, left knee, right foot, left foot, hepatitis C, ulcer, and drug and alcohol use, the Board must first determine whether new and material evidence has been received to reopen these previously denied claims. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Therefore, the Board has listed these issues on the title page accordingly. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA electronic claims file. Accordingly, any future consideration of the case should take into consideration the existence of these electronic records. The appeal is REMANDED to the RO. VA will notify the Veteran if further action is required. REMAND In the June 2010 VA rating decision, the issues of whether new and material evidence has been received to reopen previously denied claims of entitlement to service connection for right knee disorder, left knee disorder, right foot disorder, left foot disorder, and hepatitis C were denied. In October 2010, the Veteran's attorney submitted a notice of disagreement with the June 2010 VA rating decision for all issues, including these particular issues. Although the RO acknowledged receipt of the notice of disagreement, as noted in a December 2010 letter, the record does not show the RO has issued a Statement of the Case for these particular issues. As such, these issues are remanded for issuance of a Statement of the Case. Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). Next, in an August 2016 letter, the Board informed the Veteran that since the March 2013 Statement of the Case and the case certified to the Board in August 2013, it additional VA treatment records and a May 2016 VA Disability Benefits Questionnaire (DBQ) examination report for scars/disfigurement had been associated with the record and not reviewed by the RO. In August 2016, the Veteran's attorney responded to that letter indicating the Veteran did not waive the RO's initial consideration of the evidence and requested that the case be remanded to the Agency of Original Jurisdiction for review of the additional evidence received in the appeal. See Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. § 7105 to provide for an automatic waiver of initial AOJ review of evidence submitted to the AOJ or to the Board at the time of or subsequent to the submission of a substantive appeal filed on or after February 2, 2013, unless the claimant or claimant's representative requests in writing that the AOJ initially review such evidence). Accordingly, the case is REMANDED for the following actions: 1. Issue a Statement of the Case addressing the issues of whether new and material evidence has been received to reopen previously denied claims of entitlement to service connection for (a) right knee, (b) left knee, (c) right foot, (d) left foot, and (e) hepatitis C. A timely perfected appeal must be filed to vest the Board with appellate jurisdiction over any claim. Otherwise the appeal may be closed by the RO. 2. The RO should consider the additional evidence received since the March 2013 statement of the case and readjudicate the following claims on appeal: (a & b) whether new and material evidence has been received to reopen previously denied claims of entitlement to service connection for ulcer and drug and alcohol use; (c) service connection for PTSD; and (d) entitlement to a TDIU. If any claim remains denied, the Veteran and his attorney should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). _________________________________________________ GAYLE E. STROMMEN 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).