Citation Nr: 1800223 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 13-33 938A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an effective date earlier than July 27, 2000, for the assignment of an initial 100 percent evaluation for calcific aortic valve disease with aortic valve stenosis and coronary artery disease, status post aortic valve replacement and coronary artery bypass graft. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Postek, Counsel INTRODUCTION The Veteran served on active duty from May 1969 to May 1974. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Jurisdiction over the case was subsequently transferred to the RO in Winston-Salem, North Carolina. By way of background, the Board granted service connection for heart disease in a September 2003 decision. In a rating decision that same month, the RO effectuated the Board's decision and assigned a 100 percent evaluation effective from July 27, 2000. The Veteran perfected an appeal as to his disagreement with the effective date assigned for service connection, which was denied in a September 2008 Board decision. In January 2010, he requested service connection for ischemic heart disease due to herbicide exposure. The RO subsequently conducted a special review of the Veteran's claims file pursuant to Nehmer v. United States Department of Veterans Affairs, 38 C.F.R. § 3.816 (2017). As a result, the RO granted an earlier effective date for service connection for the heart disability of February 3, 1988, assigning a 30 percent evaluation from that date to the date of the 100 percent evaluation for the purposes of payment of retroactive benefits, and continuing the 100 percent evaluation thereafter. The RO also separately granted service connection for a residual surgical scar. See March 2011 rating decision. The Veteran expressed disagreement with that determination, inasmuch as he requested an earlier effective date for the assignment of the 100 percent evaluation for the heart disability. See June 2011 notice of disagreement. The Board also notes that it fulfilled the Veteran's November 2015 Privacy Act request in a December 2017 written response prior to adjudication of this appeal. See 38 C.F.R. §§ 1.577 and 20.1200. This appeal was processed using the Veterans Benefits Management System (VBMS). The appeal is REMANDED to the agency of original jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND In his December 2013 substantive appeal, the Veteran requested a hearing before the Board at the RO; he confirmed that request in a July 2015 written statement. He subsequently requested a local hearing before a RO decisionmaker in response to a November 2015 hearing request confirmation letter. In that letter, the AOJ had advised the Veteran that he may request a local hearing before an RO decisionmaker instead of a Board hearing or in addition to a Board hearing. The Veteran did not indicate that he was withdrawing his Board hearing request at that time, but he subsequently withdrew that request in a June 2016 response to a hearing request confirmation letter. Based on the foregoing, including the Veteran's withdrawal of his request for a Board hearing, the Board finds that the Veteran should be scheduled for a local hearing with a Decision Review Officer (DRO) at the RO. See June 2011 notice of disagreement with election of DRO process. Accordingly, the case is REMANDED for the following action: 1. The AOJ should schedule the Veteran for a hearing with a DRO at the local RO in accordance with his request. The Veteran should be notified in writing of the date, time, and location of the hearing. 2. After the DRO hearing is conducted, or if the Veteran withdraws the hearing request or fails to report for the scheduled hearing, the AOJ should conduct any other development as may be indicated, if needed. Further development may include securing any outstanding VA treatment records. See March 2017 and April 2017 written appellate briefs (discussing VA treatment records); March 2011 deferral (characterization of heart disability). 3. The case should then be reviewed by the AOJ on the basis of additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a supplemental statement of the case, if needed, 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 matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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. §§ 5109B, 7112 (2012). _________________________________________________ J.W. ZISSIMOS 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).