Citation Nr: 1804248 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 11-30 861 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 40 percent for degenerative disc disease (DDD) of the lumbar spine for the period prior to February 28, 2011, and in excess of 20 percent therefrom. 2. Entitlement to a rating in excess of 30 percent for DDD and arthritis of the cervical spine for the period prior to January 19, 2017, and in excess of 20 percent therefrom. 3. Entitlement to an initial rating in excess of 30 percent for peripheral neuropathy (PN) of the left upper extremity (LUE), to include the shoulder, arm, hand, and fingers. 4. Entitlement to an initial rating in excess of 20 percent for PN of the left lower extremity (LLE), to include the hip, buttocks, and foot, prior to January 19, 2017, and in excess of 40 percent therefrom. 5. Entitlement to an initial rating in excess of 10 percent for right lower extremity (RLE) sciatica. 6. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance of another person or at the housebound rate. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from February 1971 to June 1974. These matters are before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). A Travel Board hearing was held in April 2015 before the undersigned Veterans Law Judge. A written transcript of the hearing has been prepared and incorporated into the evidence of record. When this case was most recently before the Board in June 2017, issues #1-4 and 6 were remanded for additional evidentiary development. The case has since been returned to the Board for further appellate action. Unfortunately, there has not been substantial compliance with each of the mandates of the remand. Stegall v. West, 11 Vet. App. 268 (1998). Issue #5 has been added to the claim since the June 2017 remand. This appeal was processed using the Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. In addition to the VBMS file, there is a Virtual VA paperless claims file associated with the Veteran's claims. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required on his part. REMAND Initially, it is noted that during the appeal process in a March 2017 rating decision, service connection was granted for RLE sciatica, and a 10 percent rating was assigned. The 10 percent rating was confirmed in an April 2017 rating action. The Veteran submitted a notice of disagreement (NOD) with the April 2017 rating decision in July 2017. A statement of the case (SOC) has not been issued regarding this claim. The United States Court of Appeals for Veterans Claims (Court) has directed that where a veteran has submitted a timely NOD with an adverse decision and the AOJ has not subsequently issued an SOC addressing the issue, the Board should remand the issue to the AOJ for preparation of an SOC. Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). As to all other issues on appeal, the Board's June 2017 remand called primarily for readjudication of the claims after consideration of treatment records not previously considered. Review of the evidence associated with Legacy Content Manager and the VBMS does not show that the directives have been accomplished. It would appear that the file was returned to the Board prematurely. For the sake of brevity, the Board will not duplicate the discussion previously outlined in the June 2017 remand; however, a copy of the June 2017 remand must be provided to VA personnel accomplishing the remand directives. Further, the Veteran has submitted additional treatment records for review, without a waiver of RO review. This evidence should also be considered by the AOJ. Additionally, the Veteran has referred to a request by J.W.L., M.D., in December 2017, for a daily home health care aide for the Veteran. The Veteran has also referred to recent mental health care. The Board is of the opinion that updated treatment records must be obtained and considered. With respect to previous adjudication of claims, the Veteran is advised that to initiate an appeal, he must timely file a Notice of Disagreement on the appropriate form. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Copies of updated treatment records, to include from J.W.L., M.D., should be obtained and added to the claims file. 2. Issue an SOC to the Veteran and his accredited representative which addresses the issue of entitlement to an initial rating in excess of 10 percent for RLE sciatica. They should be given the appropriate opportunity to respond to the SOC. The issuance should include notice of the need to file a substantive appeal to the Board to perfect this claim. If, and only if, he perfects an appeal by the submission of a timely substantive appeal should this claim be returned to the Board for further appellate review. 38 C.F.R. §§ 20.202, 20.302, etc. (2017). 3. Following any additional action deemed warranted, the RO should readjudicate the following claims: entitlement to a rating in excess of 40 percent DDD of the lumbar spine for the period prior to February 28, 2011, and in excess of 20 percent therefrom; entitlement to a rating in excess of 30 percent for DDD and arthritis of the cervical spine for the period prior to January 19, 2017, and in excess of 20 percent therefrom; entitlement to an initial rating in excess of 30 percent for PN of the LUE, to include the shoulder, arm, hand, and fingers; entitlement to an initial rating in excess of 20 percent for PN of the LLE, to include the hip, buttocks, and foot, prior to January 19, 2017, and in excess of 40 percent from that date; and entitlement to SMC based on the need for regular aid and attendance of another person or at the housebound rate. Then issue a supplemental statement of the case which takes into consideration all evidence associated with the VBMS and Legacy Content Manager files (including private medical records from early 2017) and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant 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). _________________________________________________ BARBARA B. COPELAND 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) (2016).