Citation Nr: 1754431 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 12-16 206 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for sleep apnea. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for right hip pain. 3. Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 4. Entitlement to a rating in excess of 40 percent for a thoracolumbar spine disability. 5. Entitlement to a compensable rating prior to May 21, 2012, and a rating in excess of 10 percent as of after May 21, 2012, for right (major) elbow tendonitis. 6. Entitlement to a rating in excess of 10 percent disabling for right knee sprain and scar residuals. 7. Entitlement to a rating in excess of 10 percent for right lower extremity femoral nerve dysfunction. 8. Entitlement to a rating in excess of 10 percent for left lower extremity femoral nerve dysfunction. 9. Entitlement to a rating in excess of 10 percent for a right lower extremity sciatic disability. 10. Entitlement to a rating in excess of 10 percent for a left lower extremity sciatic disability. 11. Entitlement to a compensable rating for right foot onychomycosis. 12. Entitlement to a compensable rating for left foot onychomycosis. 13. Entitlement to a total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel INTRODUCTION The Veteran had active service from January 1984 to February 2004, to include service in Southwest Asia. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of the Muskogee, Oklahoma, Regional Office (RO) of the Department of Veterans Affairs (VA) which determined that new and material evidence had not been received to reopen the issue of service connection for sleep apnea and denied increased ratings for right (major) elbow tendonitis, right knee sprain and scar residuals, right foot onychomycosis, and left foot onychomycosis. In June 2012, the RO determined that new and material evidence had been received to reopen a claim for service connection for sleep apnea; denied the claim on the merits; and increased the rating for right elbow tendonitis from 0 to 10 percent, effective May 21, 2012. In September 2013, the RO denied TDIU. In October 2013, the RO denied both service connection for right hip pain and increased ratings for right lower extremity femoral nerve dysfunction and left lower extremity femoral nerve dysfunction. In June 2017, the Agency of Original Jurisdiction again denied service connection for a right hip pain; recharacterized the service-connected psychiatric disability as posttraumatic stress disorder (PTSD); denied an increased rating for that disability; and denied increased ratings for a right lower extremity sciatic nerve disability and a left lower extremity sciatic nerve disability. For the issues of whether new and material evidence has been received to reopen the claims of entitlement to service connection for sleep apnea and right hip pain, the Board is required to consider the question of whether new and material evidence has been received to reopen the claims to establish the Board's jurisdiction to address the underlying claims and to adjudicate the claims on a de novo basis. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). When entitlement to a TDIU is raised during the adjudicatory process of evaluating the underlying disability or disabilities, it is part of the claim for benefits for the underlying disability or disabilities. Rice v. Shinseki, 22 Vet. App. 447 (2009). REMAND In April 2015, additional relevant VA clinical documentation dated in February 2015 was incorporated into the record. The Agency or Original Jurisdiction has not considered the additional relevant evidence. The Board may not consider additional evidence without prior Agency of Original Jurisdiction review in the absence of a waiver of such review by the Veteran. Disabled American Veterans vs. Sec'y of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). The Veteran has not waived Agency of Original Jurisdiction consideration of the additional evidence. In a November 2017 written statement, the Veteran requested that the appeal be remanded to the Agency of Original Jurisdiction for review of the additional VA clinical documentation. The Veteran has submitted a timely notice of disagreement to the denial of service connection for right hip pain and increased ratings for PTSD, a thoracolumbar spine disability, a right lower extremity sciatic nerve disability, and a left lower extremity sciatic nerve disability. A statement of the case that addresses those issues has not been issued. Where a Veteran has submitted a timely notice of disagreement with an adverse decision and no statement of the case has been issued, the Board should remand for issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). Entitlement to TDIU requires an accurate assessment of the impairment associated with all of the service-connected disabilities. Accordingly, the case is REMANDED for the following action: 1. Issue a statement of the case which addresses the issues of whether new and material evidence has been received to reopen a claim for service connection for right hip pain and increased ratings for PTSD, a thoracolumbar spine disability, a right lower extremity sciatic nerve disability, and a left lower extremity sciatic nerve disability. Notify the Veteran of his appeal rights and that he must submit a timely substantive appeal to receive appellate review of those claims. If a timely substantive appeal is received, return those claims to the Board. 2. Then readjudicate the claims on appeal. If any decision is adverse to the Veteran, issue a supplemental statement of the case which addresses all relevant actions taken on the claims for benefits, to include a summary of the evidence and applicable law and regulations considered since the issuance of the last supplemental statement of the case, and allow the applicable time for response. Then return the case to the Board. 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ Harvey P. Roberts 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).