Citation Nr: 1802866 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 14-00 625 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial rating excess of 40 percent for left lower extremity sciatic radiculopathy. 2. Entitlement to an initial rating in excess of 20 percent for right knee instability. 3. Entitlement to an initial rating in excess of 10 percent for left knee instability. 4. Entitlement to an initial rating in excess of 20 percent for right lower extremity radiculopathy prior to June 22, 2017, and in excess of 40 percent thereafter. 5. Entitlement to a rating in excess of 10 percent for degenerative joint disease of the lumbosacral spine prior to June 22, 2017, and in excess of 20 percent thereafter. 6. Entitlement to a rating in excess of 10 percent for degenerative joint disease of the right knee, status post arthroscopy, prior to June 22, 2017, and in excess of 20 percent thereafter. 7. Entitlement to a rating in excess of 10 percent for degenerative joint disease of the left knee, status post arthroscopy. 8. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) prior to June 22, 2017. REPRESENTATION Veteran represented by: David Russotto, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Bristow Williams, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1971 to September 1992. These matters come to the Board of Veterans' Appeals (Board) on appeal from July 2010, October 2015, and August 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The matter of a TDIU was previously before the Board in November 2014, at which time it was remanded so that the Veteran could be scheduled for a Board hearing. The Veteran testified before the undersigned Veterans Law Judge at such a hearing in May 2015; a transcript of that hearing has been associated with the claims file. In June 2015, the Board referred the claims pertaining to service connection for radiculopathy of the right lower extremity, secondary to service-connected low back disability; as well as increased ratings for bilateral knee and low back disabilities. In the October 2015 rating decision, the RO granted, in part, service connection for right lower extremity radiculopathy and assigned a 20 percent disability rating; and continued the 10 percent disability ratings for bilateral knee and low back disabilities. In May 2016, the Veteran timely filed a notice of disagreement (NOD) to the October 2015 rating decision via submission of VA Form 21-0958. A statement of the case (SOC) was not issued by the RO. Thereafter, in September 2016, the Board, again, remanded the Veteran's claim for a TDIU as it found that the issue of a TDIU was inextricably intertwined with the issues from the rating decision appealed in the May 2016 NOD. The Board directed that a SOC be issued by the RO and the matters be returned to the Board for further appellate review. In August 2017, the RO issued: a SOC addressing those claims in the May 2016 NOD; a supplemental statement of the case (SSOC) that granted a TDIU from June 22, 2017; and a rating decision granting service connection for left lower sciatic radiculopathy, service connection for right knee instability, service connection for left knee instability, and basic eligibility for Dependents' Education Assistance. In December 2017, the Veteran submitted a NOD to the August 2017 rating decision disagreeing with the effective date of "increased ratings for TDIU, radiculopathy, DJD, left and right knee instability." An SOC has not been issued in response to this NOD. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND As noted in the Introduction, an August 2017 rating decision granted, in part, service connection for left lower sciatic radiculopathy, service connection for right knee instability, and service connection for left knee instability.. The Veteran submitted a timely notice of disagreement (NOD) via submission of VA Form 21-0958. Under 38 C.F.R. § 19.26, when a timely NOD is filed, the AOJ must reexamine the claims and determine whether additional review or development is warranted. If no further review or development is required, or after necessary review or development is completed, the AOJ must prepare an SOC pursuant to 38 C.F.R. § 19.29 unless the disagreement is resolved by a grant of the benefits sought on appeal or the NOD is withdrawn by the claimant. 38 C.F.R. §§ 19.26, 19.29; 38 U.S.C. § 7105(d) (1). Therefore, the Board is required to remand the claims for the issuance of an SOC. Manlicon v. West, 12 Vet. App. 238 (1999). In a letter dated December 4, 2017, the Veteran's representative requested that if the claim for a TDIU could not be granted to August 2010, then it be remanded so as to be adjudicated with the underlying claims. The Board finds that it would be premature to adjudicate the Veteran's claim for a TDIU, as it is inextricably intertwined with the issues appealed in the December 2017 NOD, as readjudication of such could impact a decision on the Veteran's ability to maintain employment. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180 (1991) (issues are inextricably intertwined when a decision on one issue would have a significant impact on another issue). Thus, on remand, the Board notes that the AOJ must readjudicate all pending issues, by way of the SOC, and wait the appropriate time for the Veteran to submit a substantive appeal before adjudicating the issue of TDIU. Accordingly, the case is REMANDED for the following action: 1. Only after issuance of the SOC; and the Veteran perfects an appeal by timely submitting a substantive appeal (VA Form 9), should the matters addressed in the December 2017 NOD be returned to the Board for further appellate review. 2. After undertaking any other development deemed appropriate, the AOJ should readjudicate the Veteran's claim of entitlement to a TDIU. If the claim remains denied, issue a supplemental statement of the case and give the Veteran and his attorney time to respond before returning the file to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matter or matters 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). _________________________________________________ MARJORIE A. AUER 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).