Citation Nr: 1738552	
Decision Date: 09/13/17    Archive Date: 09/22/17

DOCKET NO.  13-30 732	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


THE ISSUE

Entitlement to an increased rating for the Veteran's service-connected degenerative changes and intervertebral disc syndrome in the lumbar spine (back disability) rated as 20 percent disabling prior to November 27, 2012, and 40 percent thereafter.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

M. Shouman, Associate Counsel



INTRODUCTION

The Veteran honorably served on active duty in the United States Navy from November 1928 to June 2003.  The Veteran was awarded the Navy and Marine Corps Commendation Medal and the Meritorious Unit Commendation.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision of the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona.  The decision increased the Veteran's rating for his back disability to 40 percent, effective November 27, 2012, and granted an evaluation of 20 percent for neuropathy of the left sciatic nerve, also effective November 27, 2012.  The Veteran timely appealed the decision in October 2013.

The appeal is REMANDED to the agency of original jurisdiction.  VA will notify the appellant if further action is required.


REMAND

In June 2010, the Board made a decision granting a 20 percent disability rating, but not higher, for the entire initial evaluation period for the Veteran's degenerative changes of his lumbar spine.  A rating decision implementing the June 2010 Board decision was issued by the RO in August 2010.

In August 2010, the Veteran filed a VA Form 21-526b seeking, in part, an increased evaluation for his back disability.  Then, in a letter received in May 2011, the Veteran filed what he described as a "notice of disagreement" regarding the August 2010 rating decision.  However, because the August 2010 rating decision was only implementing the June 2010 Board decision, the Veteran may not appeal by filing a notice of disagreement.  Following a Board decision on a matter, the Veteran may only appeal to the U.S. Court of Appeals for Veterans Claims (CAVC).  This option was indicated in the "Your Rights to Appeal Our Decision" appended to the June 2010 Board decision.  The record does not reflect that the Veteran appealed the June 2010 Board decision to the CAVC.  

Nevertheless, the RO considered the issue.  In August 2013, the RO increased the Veteran's rating to 40 percent, effective November 27, 2012, and granted an evaluation of 20 percent effective November 27, 2012 for neuropathy of the left sciatic nerve.  The Veteran then filed a VA Form 9 in October 2013.

The Board construes the August 2013 decision as an adjudication of the back disability claim filed in August 2010 on the VA Form 21-526b.  The Board also construes the Veteran's October 2013 VA Form 9 as a notice of disagreement with regard to the August 2013 rating decision, not as a substantive appeal.

Thus, although the issue was subsequently considered, this was done in an August 2013 rating decision and not a statement of the case.  Without a statement of the case, the Veteran lacks the ability to perfect an appeal.  The Board is obligated to remand.  See Manlincon v. West, 12 Vet. App. 238, 240-41 (concluding that the Board erred in not remanding a claim to a regional office for issuance of a statement of the case on the denial of that claim).

Accordingly, the case is REMANDED for the following action:

Issue a statement of the case regarding the issue of entitlement to increased ratings for the Veteran's service-connected thoracolumbar back disability.

The appellant has the right to submit additional evidence and arguments on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369, 372-73 (1999) (per curiam).


This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the CAVC for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).



_________________________________________________
Paul Sorisio
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252, only a decision of the Board is appealable to the CAVC.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits.  38 C.F.R. § 20.1100(b) (2016).