Citation Nr: 1805075 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 12-20 740A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to an increased evaluation for postoperative residuals of right hypertensive hemorrhage, to include whether separate compensable ratings are warranted for the residuals such as thrombosis of the brain, cognitive defects, gastric problems, arteriosclerotic heart disease and a seizure disorder, for accrued benefits purposes. 2. Entitlement to payment of special monthly compensation (SMC) at a higher rate, for accrued benefits purposes. 3. Entitlement to an effective date prior to August 5, 1997, for the award of SMC, for accrued benefits purposes. REPRESENTATION Appellant represented by: J. Bryan Jones, III, Attorney ATTORNEY FOR THE BOARD A. Adamson, Counsel INTRODUCTION The Veteran served in the United States Army from August 1967 to March 1970. He died in July 2008 and the appellant is his surviving spouse. This matter comes before the Board of Veterans Appeals (Board) on appeal from an October 2011 rating decision by the New Orleans, Louisiana, Regional Office (RO) of the Department of Veteran's Affairs (VA), which denied the appellant's claims for accrued benefits. In particular, the RO denied an increased rating for the Veteran's service-connected hypertension, denied payment of compensation benefits under 38 U.S.C. § 1151, and denied payment of SMC at a higher rate. The appellant perfected an appeal and the Board issued a decision in January 2013 dismissing the hypertension rating and § 1151 claims as withdrawn, and denying the SMC claim. The appellant appealed to the Court of Appeals for Veterans Claims (Court). Following complex development at the Court, in October 2014, the Court issued a Memorandum Decision affirming the Board's findings as to the withdrawn issues, and vacating the SMC issue with direction to develop the claims listed in the case caption, above. In February 2015, the Board issued a decision remanding only the earlier effective date issue related to SMC. As additional action is required pursuant to the Court's October 2014 Memorandum Decision, the appeal is again REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. 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). REMAND As noted above, the matters on appeal were addressed by the Court in an October 2014 Memorandum Decision. The Court explicitly found that the Board erred by not ordering the AOJ to address all aspects of the Veteran's April 2008 disagreement with the January 2008 rating decision related to the evaluation of the service connected residuals of right hypertensive hemorrhage. In particular, the Court noted the failure to address whether separate compensable ratings are warranted for residuals such as thrombosis of the brain, cognitive defects, gastric problems, arteriosclerotic heart disease and seizures. As the Court has found that this error was on the part of the RO in its failure to address disagreement with the January 2008 rating decision, the appropriate Board action is to remand the matter for the issuance of an SOC. See Manlincon v. West, 12 Vet. App. 238 (1999). On remand, therefore, the appellant must be provided an SOC that addresses the issue of entitlement to an increased evaluation for postoperative residuals of right hypertensive hemorrhage, to include whether separate compensable ratings are warranted for the residuals such as thrombosis of the brain, cognitive defects, gastric problems, arteriosclerotic heart disease and a seizure disorder, for accrued benefits purposes. The Court also found the matter as to the appropriate level of SMC to be inextricably intertwined with the ratings pending from the January 2008 rating decision, since these ratings may serve as the basis for an award of a higher level of SMC. The Board finds the effective date claim for SMC is also dependent upon the determination as to the appropriate separate ratings related to the residuals of right hypertensive hemorrhage and the related effective dates assigned. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Therefore, consideration of the SMC issues must be deferred pending the adjudication of the claims for compensation for all residuals of the right hypertensive hemorrhage. See Tyrues v. Shinseki, 23 Vet. App. 166, 178 (2009) (if matter on appeal is inextricably intertwined with an issue or claim still pending before VA, for reasons of judicial economy or on prudential grounds, review of merits of the claim or issue adjudicated will generally be deferred for further adjudication, as appropriate); see also Gurley v. Nicholson, 20 Vet. App. 573, 575-76 (2007) (recognizing the validity of remands based on judicial economy when issues are inextricably intertwined). 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. Issue a Statement of the Case (SOC) to the appellant addressing the issue of entitlement to an increased evaluation for postoperative residuals of right hypertensive hemorrhage, to include whether separate compensable ratings are warranted for the residuals such as thrombosis of the brain, cognitive defects, gastric problems, arteriosclerotic heart disease and a seizure disorder, for accrued benefits purposes. This is in response to the Veteran's April 2008 disagreement with the ratings assigned by way of the January 2008 rating decision as noted in the Court's October 2014 Memorandum Decision. The appellant is reminded that to vest the Board with jurisdiction over these issues, a timely substantive appeal must be filed. 38 C.F.R. § 20.202 (2017). 2. When the development required has been completed, if the benefits sought are not granted, to include the ratings considered in the SOC ordered above, as well as the appropriate SMC rate and effective date, the appellant and her representative should be furnished a Supplemental SOC (SSOC) and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ BETHANY L. BUCK 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).