Citation Nr: 1802008	
Decision Date: 01/10/18    Archive Date: 01/23/18

DOCKET NO.  15-05 912	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Anchorage, Alaska


THE ISSUE

Entitlement to service connection for emphysema.


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

M. Young, Counsel 


INTRODUCTION

The Veteran served on active duty from April 1984 to October 1984 and from August 1985 to December 1994; he also served in the National Guard from November 1959 to May 1960.

This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Anchorage, Alaska.  In October 2015, following a September 2015 hearing, the Board remanded the matter for additional development.

By rating decision dated in August 2017 the RO granted service connection for left and right knee degenerative arthritis each with a 10 percent rating effective August 8, 2013, and for limitation of extension associated with degenerative arthritis of the left knee rated 0 percent from August 8, 2013.  As the August 2017 rating decisions represents full grants of the benefits sought, these issues are no longer before the Board.  See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (noting that a grant of service connection extinguishes appeals before the Board).

In a December 2017 informal hearing presentation by the Veteran's representative, the issues of initial ratings higher than 10 percent each for left and right knee degenerative arthritis have been raised.  The Veteran has not submitted a notice of disagreement [VA Form 21-0958] regarding these issues; they have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2017).

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the Veteran if further action is required.


REMAND

In the October 2015 remand, the Board specifically noted the absence of a 38 C.F.R. § 3.159(b) notice letter as to the issue on appeal and directed the AOJ to issue such a letter prior to further development and adjudication on the claim.  It does not appeal that any such letter was ever issued in this case, however, and this oversight constitutes a procedural error of sufficient gravity that a remand is necessary for correction.  See Stegall v. West, 11 Vet. App. 268, 271 (1998); 38 C.F.R. § 19.9 (2017).

Accordingly, the case is REMANDED for the following action:

1.  The Veteran must be furnished a 38 C.F.R. § 3.159(b) notice letter as to the issue of service connection for emphysema.  A reasonable period of time must be allowed for a response.

2.  Then, after ascertaining whether any additional development is necessary, the AOJ must readjudicate the claim on appeal.  If the determination remains unfavorable to the Veteran, he and his representative must be allowed a reasonable period of time in which to respond before the case is returned to the Board.  

The Veteran has the right to submit additional evidence and argument on this matter.  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).



_________________________________________________
A. C. MACKENZIE
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).