Citation Nr: 1753632 Decision Date: 11/22/17 Archive Date: 12/01/17 DOCKET NO. 04-00 156A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a right ankle disability. 2. Entitlement to service connection for a left ankle disability. 3. Entitlement to an effective date earlier than July 18, 2012, for the award of service connection for hemorrhoids. 4. Entitlement to increased evaluations on an extra-schedular basis for service-connected headaches and impotence. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. R. Fletcher INTRODUCTION The Veteran served on active duty from August 1975 to August 2001. This matter was originally before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Roanoke, Virginia Department of Veterans Affairs (VA) Regional Office (RO). In January 2016, the Board (in pertinent part) denied the issues of entitlement to higher initial ratings for headaches and bilateral hearing loss. The Board also remanded the issues of entitlement to service connection for right and left ankle disabilities and hemorrhoids and the issues of entitlement to increased evaluations on an extra-schedular basis for service-connected headaches and impotence to the Agency of Original Jurisdiction (AOJ) for additional development. In a July 2016 rating decision, the AOJ granted service connection for hemorrhoids. The Veteran subsequently appealed the Board's decision as to the denial of an initial compensable rating for headaches, and the failure to refer the bilateral hearing loss claim or the combined effects of the service-connected disabilities for extra-schedular consideration to the United States of Appeals for Veterans Claims (Court). The Veteran withdrew the issue of the failure to refer the bilateral hearing loss claim for extra-schedular consideration. In a May 2017 Memorandum Decision, the Court upheld the Board's decision as to the claim for an initial compensable schedular rating for headaches (noting that the issue of an extra-schedular rating for headaches was remanded by the Board in January 2016 and, thus, constituted a nonfinal matter over which the Court did not have jurisdiction.) The Court also set aside the determination with respect to referral for extra-schedular consideration of the collective impact of service-connected disabilities, and remanded the claim to the Board for further proceedings consistent with the Court's Memorandum Decision. Also as an initial matter, the Board notes that the AOJ denied increased ratings for service-connected cervical spine disability, lumbar spine disability, left and right lower extremity peripheral neuropathy, and left and right upper extremity peripheral neuropathy in a May 2016 rating decision. In December 2016, the Veteran filed a notice of disagreement (NOD) with these issues. The Veteran has not yet been issued a statement of the case (SOC) for those issues. Ordinarily, the claim would be remanded for the issuance of an SOC pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). However, it appears the AOJ has acknowledged the Veteran's NOD and additional action is pending. Therefore, this situation is distinguishable from Manlincon, where an NOD had not been recognized, and remand is not necessary at this time. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action on his part is required. REMAND Earlier Effective Date for the Service Connection for Hemorrhoids One of the matters the Board must address is which issue or issues are properly before the Board. An appeal to the Board is initiated by an NOD and completed by a substantive appeal after an SOC is furnished. In essence, the following sequence is required: There must be a decision by the AOJ; the claimant must timely express disagreement with the decision; VA must respond by issuing an SOC; and finally the claimant, after receiving the SOC, must complete the process by stating his argument in a timely-filed substantive appeal. See 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.200, 20.201, 20.202 and 20.203 (2017). Here, a July 2016 rating decision awarded service connection for hemorrhoids and assigned a 20 percent evaluation effective July 18, 2012. The Board accepts a March 2017 correspondence from the Veteran as an NOD. The record before the Board does not show that the RO has acknowledged this NOD or that the Veteran has been provided an SOC in response to this NOD. Because the NOD placed the issue in appellate status, the matter must be remanded for the AOJ to issue an SOC. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). Service Connection for Right and Left Ankle Disabilities Regarding the service connection claims, another remand is unfortunately required. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. See Stegall v. West, 11 Vet. App. 268 (1998). The Board remanded these service connection claims in January 2016, in pertinent part, to afford the Veteran a VA examination to determine the nature and etiology of any right and left ankle disability found to be present. The examiner was to review the claims file and provide an as to whether it is at least as likely as not that each disability: (a) was incurred during the Veteran's service, (b) is otherwise related to his service, (c) was caused by his service-connected disabilities, or (d) was aggravated (permanently worsened beyond the natural progression) by his service-connected disabilities. The Veteran underwent a VA examination in June 2016, and the VA examiner provided negative nexus opinions for direct service connection. However, the examiner did not provide opinions as to whether right and left ankle disabilities were caused and/or aggravated by service-connected disabilities as requested. Therefore, remand for additional medical opinions is necessary pursuant to Stegall, supra. Extra-Schedular Ratings In January 2016, the Board (in pertinent part) remanded the issues of entitlement to increased evaluations on an extra-schedular basis for service-connected impotence and headaches so that they might be referred to the Director, Compensation Service, pursuant to 38 C.F.R. § 3.321(b). Thereafter, if the benefits sought remained denied, the AOJ was to issue a SSOC. Thereafter, the Court's May 2017 Memorandum Decision indicated that the Board's January 2016 decision erred by failing to consider the combined effects of the Veteran's service-connected disabilities in determining that no referral for extra-schedular consideration on that basis was warranted. See Johnson v. McDonald, 762 F.3d 1362, 1365 (Fed. Cir. 2014) (Board must consider the "collective impact" of a veteran's injuries when deciding the issue of extra-schedular referral under 38 C.F.R. § 3.321 (b)). In this regard, the Veteran is service-connected for the following disabilities: bilateral hearing loss, impotence, headaches, folliculitis of the scalp, bilateral upper extremity peripheral neuropathy, degenerative joint and disc disease of the cervical and lumbar spine, physiological mitral regurgitation and pulmonary incompetence, degenerative arthritis of the right and left knees, left and right lower extremity peripheral neuropathy, bilateral shoulder strains, and hemorrhoids. The Court stated that in light of the Board's January 2016 remand of the matter of entitlement to an increased evaluation on an extra-schedular basis for service-connected headaches, the issue of extra-schedular consideration on the basis of combined effects of service-connected disabilities must be remanded, as development and a decision on the headaches issue could impact the combined effects issue. Review of the claims file does not show that the issues of entitlement to increased evaluations on an extra-schedular basis for service-connected impotence and headaches were ever referred for extra-schedular consideration. No SSOC was promulgated with regard to these issues, nor were the issues certified back to the Board. An SSOC must be furnished if the claims remain denied. 38 C.F.R. § 19.31(b)(1) (2017); see also Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, the case is REMANDED for the following actions: 1. Issue an appropriate SOC to the Veteran in the matter of entitlement to an effective date earlier than July 18, 2012, for the award of service connection for hemorrhoids. Advise him of the time limit for filing a substantive appeal. If an appeal is timely perfected, ensure that all indicated development is completed before the case is returned to the Board. 2. Contact the appropriate VA Medical Center(s) and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 3. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 4. After all additional and available records are associated with the claims file, obtain an addendum opinion as to the etiology of the Veteran's right and left ankle disabilities from a qualified VA medical professional. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. The examiner must opine whether it is at least as likely as not (a 50 percent probability or greater): (a) that the Veteran's right and left ankle disabilities were caused by his service-connected disabilities, to include knee and back disabilities, or (c) that the Veteran's right and left ankle disabilities were aggravated by his service-connected knee and back disabilities. For the purposes of secondary service connection, the examiner is advised that aggravation is defined as "any increase in disability." See Allen v. Brown, 7 Vet. App. 439, 448 (1995). 5. Ensure compliance with the directives of this remand. If a report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271(1998). 6. Refer the case to the Director, Compensation Service, for consideration of entitlement to extra-schedular evaluations of service-connected impotence and headaches, addressing whether the combined effects of all of the Veteran's service-connected disabilities (bilateral hearing loss, impotence, folliculitis of the scalp, headaches, bilateral upper extremity peripheral neuropathy, degenerative joint and disc disease of the cervical and lumbar spine, physiological mitral regurgitation and pulmonary incompetence, degenerative arthritis of the right and left knees, left and right lower extremity peripheral neuropathy, bilateral shoulder strains, and hemorrhoids) is so exceptional or unusual that it is not adequately captured by schedular evaluations. 7. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a supplemental statement of the case to him and his representative and allow the appropriate time for response. Then, return the claim to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. §§ 5109B, 7112 (2012). _________________________________________________ A. ISHIZAWAR Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).