Citation Nr: 1754831	
Decision Date: 11/30/17    Archive Date: 12/07/17

DOCKET NO.  11-11 488	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1.  Entitlement to a disability evaluation in excess of 20 percent from May 4, 2011 to July 21, 2016, and in excess of 10 percent since July 22, 2016, for peripheral neuropathy in the left lower extremity.

2.  Entitlement to a disability evaluation in excess of 20 percent from May 4, 2011 to July 21, 2016, and in excess of 10 percent since July 22, 2016, for peripheral neuropathy in the right lower extremity.


REPRESENTATION

Veteran represented by:	Joel R. Bellis, Attorney


ATTORNEY FOR THE BOARD

Russell Veldenz, Counsel

INTRODUCTION

The Veteran served on active duty from December 1965 to November 1967, to include service in the Republic of Vietnam.

This matter is before the Board of Veterans' Appeals (Board) on appeal of an April 2010 rating decision by the Nashville, Tennessee Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran originally requested a hearing before the Board.  In July 2013, the Veteran, through his service representative, withdrew that request in writing.  38 C.F.R. 20.704(e) (2017).  

In November 2013, the Board denied ratings higher than 10 percent for left and right lower extremity peripheral neuropathy for the period from January 2010 to May 4, 2011 and remanded the case to the Agency of Original Jurisdiction (AOJ) for additional development on the claims for ratings higher than 20 percent for left and right lower extremity peripheral neuropathy since May 4, 2011.  Those appeals have returned to the Board for appellate review.  It is also noted that while the disability rating for each of these disabilities was reduced from 20 to 10 percent in July 2016, the Veteran's combined disability rating was not reduced.  

The appeal is REMANDED to the AOJ.  VA will notify the Veteran if further action is required.


REMAND

Appellants are entitled to a review of claims denied by VA.  38 U.S.C. § 7104(a) (2012).  This review is performed by the Board and must be based on the entire record and upon consideration of all evidence and material of record.  Id.  Simply put, appellants are entitled to a second look at all evidence and decisions made by VA.  There are limited exceptions to this general principle.  For example, appellant's can waive review of evidence by the AOJ and allow the Board to issue a decision based in part on evidence that has not been reviewed by the AOJ.  See 38 C.F.R. § 20.1304 (2017).  This provision, however, applies only to evidence that has been submitted by the appellant or his or her representative.  It does not apply to evidence added to the file by VA.  In this case, additional evidence was added to the file by VA since the last statement of the case.  Notably, the Veteran has had three VA peripheral nerve examinations (March 2015, July 2016, June 2017) since the most recent (January 2014) supplemental statement of the case.  Thus, remand is required so that this new evidence can be reviewed in the first instance by the AOJ.  

Accordingly, the case is REMANDED for the following action:

Readjudicate the claims for higher ratings for peripheral neuropathy of the lower extremities.  If any benefit sought on appeal remains denied, the Veteran and his attorney should be furnished a supplemental statement of the case and be given the opportunity to respond thereto.  
  
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 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).



_________________________________________________
Nathan Kroes
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C. § 7252 (2012), only a decision of the Board 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).