Citation Nr: 18145677 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 16-15 312A DATE: October 29, 2018 ORDER Entitlement to a rating in excess of 10 percent prior to May 1, 2017, for the service-connected lumbosacral strain with scoliosis (back disability) is denied. Restoration of the 10 percent rating for the service-connected back disability, effective May 1, 2017, is granted. Entitlement to a 20 percent rating, and no higher, from May 1, 2017, for the service-connected back disability is granted. A separate 20 percent disability rating, but no higher, for lumbar radiculopathy of the bilateral lower extremities is granted from August 9, 2017. REMANDED Entitlement to a rating in excess of 10 percent for service-connected right hip labral tear is remanded. Entitlement to a rating in excess of 10 percent for service-connected left hip strain is remanded. Entitlement to a rating in excess of 10 percent for a left knee disability from October 16, 2016 is remanded. Entitlement to a rating in excess of 10 percent for a right knee disability from October 16, 2016 is remanded. FINDINGS OF FACT 1. Prior to May 1, 2017, the Veteran’s service-connected back disability manifested with objective evidence of pain on motion. 2. The weight of the evidence fails to show that the Veteran’s back disability manifested sustained improvement. 3. From May 1, 2017, the Veteran’s service-connected back disability manifested with forward flexion to 45 degrees, extension to 30 degrees, right and left lateral flexion to 20 degrees, with objective evidence of pain on movement and reported flare-ups. 4. The Veteran’s lumbar spine disability has been productive of neurological impairment of the bilateral lower extremities resulting in mild incomplete paralysis of the sciatic nerve from August 9, 2017. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 10 percent prior to May 1, 2017, for service-connected back disability have not been met. 38 U.S.C. §§ 1155, 5017; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5237 (2017). 2. The rating reduction for the Veteran’s back disability, effective May 1, 2017, was improper, and restoration of the 10 percent rating assigned for the disability is warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.105, 3.344 (2017). 3. The criteria for entitlement to a rating in excess of 10 percent from May 1, 2017, for service-connected back disability have been met. 38 U.S.C. §§ 1155, 5017; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes (DCs) 5003, 5010, 5235-5243 (2017). 4. From August 9, 2017, the criteria for a separate 20 percent rating, but no higher, for radiculopathy of the bilateral lower extremities are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.123, 4.124, 4.124a; Diagnostic Code (DC) 8520 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This case comes before the Board on appeal of an April 2015 rating decision. In that rating decision, the RO maintained the Veteran’s service-connected left hip strain at 10 percent disabling, her right hip labral tear at 10 percent disabling, lumbosacral strain with scoliosis at 10 percent disabling, and a noncompensable evaluation for her bilateral knee disability. The Veteran filed her notices of disagreement (NODs) in June and July 2015, seeking a higher rating for her bilateral hip disability, a higher rating for her bilateral knee disability, and compensable rating for her back disability. In a March 2016 SOC, the RO proposed reductions to the disabilities on appeal. The Veteran filed her substantive appeal seeking a higher rating and disagreeing with the potential reduction. Subsequently, in a February 2017 rating decision, the RO reduced the Veteran’s back disability to noncompensable effective May 1, 2017. Then, in February 2017, the RO issued two SSOCs, increasing the evaluation for the Veteran’s bilateral knee disability to 10 percent effective October 21, 2016, but maintained the bilateral hip disability ratings of 10 percent, and maintained the current evaluations for the Veteran’s back disability, including the reduction. The Veteran filed an NOD in February 2017, to the February 2017 rating decision, disagreeing with the reduced rating. The Board notes that rating reduction claims are separate from increased ratings claims. Dofflemeyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992). However, in this case, the rating reduction resulted from the Veteran’s claim for a higher rating for her service-connected disabilities, and she continued to request a higher rating even after the reduction was finalized. See March 2016 SOCs; see also February 2017 NOD. Therefore, both the increased rating claims and the propriety of the rating reduction are on appeal. Additionally, the Board notes that the Veteran sought an earlier effective date for the increased evaluation for her bilateral knee disability. See February 2017 NOD. However, in a May 2017 report of general information, the Veteran stated that she was not concerned with the earlier effective date claim and only added it to her NOD because a VA employee informed her that her effective date should be earlier. She was informed that the date of the increase was the earliest date ascertainable that her knee disability increased in severity. The Veteran did not file a subsequent NOD for an earlier effective date. Therefore, based on the Veteran’s statements, the claim for an earlier effective date is considered withdrawn. See 38 C.F.R. § 20.204. Likewise, in the February 2017 NOD, the Veteran stated that she agreed with the 10 percent disability ratings for her bilateral knee disability. However, although the Veteran agreed with the rating assigned at that time, it is unclear that the rating satisfies her appeal moving forward from that date. Therefore, the appeal is continued. See AB v. Brown, 6 Vet. App. 35, 39 (1993) (a veteran is presumed to be seeking the maximum possible rating unless [s]he indicates otherwise). Increased Rating Claims Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. To evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an increase in the level of a disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). As in the instant case, separate ratings for distinct periods of time, based on the facts may be for consideration. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59 (2017). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Diagnostic Code 5003, states that degenerative arthritis established by X-ray findings will be rated based on limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, DC 5010. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, DC 5010. The General Rating Formula DCs 5235-5243 provides for the rating of disabilities of the spine mostly based on limitation of motion. With or without symptoms such as pain (whether or not it radiates), stiffness, or aching around the spine affected by residuals of injury or disease, the relevant parts of the formula for the lumbar spine are as follows: A 100 percent rating is warranted for unfavorable ankylosis of the entire spine warranted. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or the combined range of motion of the thoracolumbar spine not greater than 120 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. § 4.71a. The regulations also provide for separate ratings for chronic orthopedic and neurological manifestations. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. 38 C.F.R. § 4.71a, Note (2). Intervertebral Disc Syndrome (IVDS) is evaluated either under the General Rating Formula or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. 38 C.F.R. § 4.71a, DC 5243 (2017). Note (1) of 38 C.F.R. § 4.71a, DC 5243 states that an “incapacitating episode” is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 1. Entitlement to a rating in excess of 10 percent prior to May 1, 2017, for service-connected back disability Prior to May 1, 2017, the Veteran’s back disability was evaluated at 10 percent disabling under DC 5237. The Veteran contends that her back disability warranted a higher evaluation. Based on the evidence of record, the Board disagrees. Here, for the appeal period prior to May 1, 2017, the preponderance of the evidence fails to show that the Veteran’s back disability manifested with forward flexion greater than 30 degrees but not greater than 60 degrees, or with guarding severe enough to result in abnormal gait or abnormal spinal contour. Specifically, in an April 2015 radiology report, the x-ray showed minimal degenerative changes within the lower lumbar spine. In the assessment, it was noted that the Veteran had mechanical pain in her lower back coming from her bilateral labral tears. In VA outpatient treatment notes from October 2015 to December 2015, the Veteran complained of pain in her lower back and was assessed with chronic pain of the hips, knees and low back. The Veteran was seen in rheumatology and orthopedics, with possible fibromyalgia also serology had been negative. In an August 2016 primary care note, it was noted that the Veteran was unable to do any of the back/hip/shoulder maneuvers due to stiffness/pain on that day. Likewise, the Veteran continued to complain of back pain up until October 2016. Including treatment records up to March 2017, the Veteran complained of chronic back pain without evidence that her low back pain had been alleviated. See April 2017 VA Outpatient Treatment Notes. Based on the foregoing, the preponderance of the evidence fails to support a rating in excess of 10 percent. The Veteran’s back disability manifested with objective evidence of chronic pain and limited mechanical function due to pain. However, the evidence failed to show that the Veteran’s back disability manifested with forward flexion greater than 30 degrees, but not greater than 60 degrees, or guarding or muscle spasm enough to result in abnormal gait or spinal contour. Moreover, no neurologic abnormalities were shown prior to May 1, 2017. As such, an evaluation greater than 10 percent is not warranted. Accordingly, as the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application and the claim must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. The propriety of the rating reduction from 10 percent to noncompensable, effective May 1, 2017, for the Veteran’s service-connected back disability The criteria governing rating reductions for certain service-connected disabilities are found in 38 C.F.R. § 3.344. The provisions of 3.344(a) and (b) apply to ratings that have been continued for five years or more. Here, the 10 percent rating had been in effect for less than five years at the time the reduction took place. Therefore, the provisions of 38 C.F.R. § 3.344 (a) and (b) do not apply. For service-connected disabilities not covered by 38 C.F.R. § 3.344 (a) and (b), reexamination disclosing improvement will warrant a rating reduction. 38 C.F.R. § 3.344(c). Regarding rating reduction matters, VA regulations provide that where the reduction in the rating of a service-connected disability is considered warranted and the lower rating would result in a reduction or discontinuance of compensation payments currently being made, a rating action will be taken. A veteran will be notified of the proposed reduction and that he or she has 60 days in which to present evidence showing why the reduction should not be implemented and to request a hearing. The reduction will be made effective the last day of the month during which the 60-day period expires. 38 U.S.C. § 5112 (b)(6); 38 C.F.R. § 3.105(e). Here, such requirements were completed. The Veteran was notified of the March 2016 proposed reduction and her right to request a hearing in April 2016. Further, her reduction took place effective May 1, 2017, which was after the expiration of the 60-day period. Id. The issue is whether the rating reduction was proper due to improvement of the service-connected disability. VA regulations require that each disability be viewed in relation to its history. 38 C.F.R. § 4.1 (2017). The provisions of 38 C.F.R. § 4.2 establish that it is the responsibility of the rating specialist to interpret reports of examination considering the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. Furthermore, 38 C.F.R. § 4.13 provides that the rating agency should assure itself that there has been an actual change in the condition, for better or worse, and not merely a difference in the thoroughness of the examination or in use of descriptive terms. In any rating reduction case, not only must it be determined that an improvement in a disability has actually occurred, but that such improvement reflects improvement in ability to function under ordinary conditions of life and work. See Brown v. Brown, 5 Vet. App. 413, 420-421 (1993). Moreover, in cases involving disability ratings of the musculoskeletal system, VA must also consider the provisions of 38 C.F.R. §§ 4.40 through 4.71. Further, though a rating reduction must have been supported by the evidence on file at the time of the reduction, pertinent post-reduction evidence favorable to restoring the rating also must be considered. Dofflemeyer v. Derwinski, 2 Vet. App. 277 (1992). Here, in the April 2013 VA examination, the Veteran’s lumbosacral strain manifested with forward flexion to 90 degrees, extension to 30 degrees, left/right lateral flexion to 25 degrees, and left/right rotation to 30 degrees. Likewise, the Veteran showed objective evidence of pain on motion. Thus, a 10 percent disability rating was assigned. Conversely, during the March 2015 VA examination, the Veteran’s lumbosacral strain manifested with full range of motion on flexion, extension, left/right lateral flexion and rotation, with no objective evidence of pain. There was x-ray evidence of scoliosis but the VA examiner indicated that although there was scoliosis with convexity to the left, the scoliosis was not clinically significant and is unrelated to the service-connected back disability, as the Veteran’s posture was within normal limits and gait was within normal limits. Even more, in the November 2016 physical rehabilitation note, the Veteran underwent an examination where her lower spine manifested: normal lumbar lordosis, no evidence of sacroiliac joint malalignment, no focal atrophic changes, no objective spasm at back musculature, no myofascial trigger points at the low back region, lumbar spinous processes were non-tender; no palpable step-off, lumbar active range of motion was within normal limits in flexion, extension, R/L rotation and lateral flexion. Facet loading was negative in the lumbar region, supine and seated straight-leg raise tests were negative. In the February 2017 rating decision, the RO reduced the Veteran’s rating from 10 percent to noncompensable, effective May 1, 2017, citing the March 2015 VA examination and November 2016 physical as support of the reduction. The Board finds; however, that the Veteran’s back disability has not shown actual improvement where the Veteran is able to function under ordinary conditions of life and work. Specifically, in an April 2015 rheumatology note, the VA rheumatologist indicated that the Veteran had limited flexion when touching her toes. The April 2015 radiology report showed minimal degenerative changes within the lower lumbar spine. Likewise, in an August 2016 primary care note, it was noted that the Veteran was unable to do any of the back/hip/shoulder maneuvers due to stiffness/pain on that day. Moreover, the Veteran has complained of chronic low back pain up to and during the time of her rating reduction, without any evidence that the pain resolved. See e.g., April 2017 VA Outpatient Notes. In fact, in a March 2017 note, the Veteran had tenderness to palpation of the thoracolumbar paraspinals, with an assessment of axial low back overuse myofascial pain. Furthermore, there is pertinent post-reduction evidence that shows that the Veteran’s back disability manifested with pain causing functional impairment, limitation of motion and flare-ups. See August 2018 VA Examination; see also Dofflemeyer v. Derwinski, 2 Vet. App. 277 (1992). Therefore, the Board finds that restoration of the rating for the Veteran’s service-connected back disability is warranted. Accordingly, restoration of the 10 percent rating, effective May 1, 2017, is warranted. 3. Entitlement to a rating in excess of 10 percent from May 1, 2017, for service-connected back disability Regarding the Veteran’s back disability from May 1, 2017, the evidence supports a rating of 20 percent, but no higher. The Board notes that there are extensive treatment notes from May 1, 2017; however, the most pertinent evidence that supports a higher rating is the August 2018 VA examination. In the August 2018 VA examination, the Veteran was diagnosed with bilateral lower extremity radiculopathy and degenerative arthritis with disc bulging. The Veteran reported flare-ups where pain radiates from the lower part of the back up to back of shoulders. Also, the Veteran reported functional impairment in that she had difficulty sleeping because of pain and had a sedentary job and had to stand up because of back discomfort from sitting for prolonged periods. Her back disability manifested with flexion to 45 degrees, extension to 25 degrees, R/L lateral flexion to 20 degrees, R/L lateral rotation to 15 degrees. Neither the Veteran’s limitation of motion nor pain contributed to functional loss. The Veteran did exhibit pain on forward flexion and extension. There was mild pain to the medial sacrum area related to the back strain. There is no evidence of pain with weight bearing and the Veteran performed repetitive-use testing with at least three repetitions, without additional loss of function or range of motion. The examination was not being conducted during a flare-up and the Veteran was not examined immediately after repetitive use over time. It was noted that pain during flare-ups caused functional loss. There was no evidence of guarding or muscle spasms. The Veteran did exhibit difficulty bending forward and leaning backward. The Veteran did not exhibit muscle atrophy; sensory examination showed normal right and left lower extremities. Straight leg raising test was positive bilaterally. Even more, the Veteran exhibited radicular pain bilaterally in her lower extremities. There is bilateral involvement of the L4/L5/S1/S2/S3 nerve roots, noted to be mild. There was no ankylosis of the spine. The Veteran did not exhibit any other neurologic abnormalities or findings related to a thoracolumbar spine. Likewise, the Veteran did not have IVDS of the thoracolumbar spine. There were no other pertinent physical findings or functioning that is so diminished that amputation with prosthesis would equally serve the Veteran. There was no evidence of pain on non-weight bearing. Passive range of motion was the same as active range of motion. Based on the foregoing, the Veteran’s back disability most closely approximates to a 20 percent evaluation and no higher. The Veteran had limited range of motion with flexion limited to 45 degrees, with objective evidence of pain on flexion and extension, among other issues. A higher evaluation is not warranted as the Veteran’s back disability did not manifest with forward flexion of the thoracolumbar spine 30 degrees or less, nor was there favorable or unfavorable ankylosis of the entire thoracolumbar spine. Accordingly, a 20 percent evaluation, and no higher, is warranted for the Veteran’s back disability under DCs 5003, 5327. In addition to consideration of the orthopedic manifestations of the lumbar spine disability, VA regulations require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code. DC 8520 provides ratings for incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a. Disability ratings of 10, 20, and 40 percent are warranted, respectively, for mild, moderate, and moderately severe incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124, DC 8520. A disability rating of 60 percent is warranted for severe incomplete paralysis with marked muscle atrophy. An 80 percent rating is warranted with complete paralysis of the sciatic nerve. Id. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. Here, the Board finds that the Veteran’s back disability has resulted in bilateral mild incomplete paralysis of the sciatic nerve. As indicated in the August 2018 examination, the Veteran exhibited radicular pain in her lower extremities with bilateral involvement of the L4/L5/S1/S2/S3 nerve roots, noted to be mild. Under the “Diseases of the Peripheral Nerves,” the rater is instructed to combine the ratings under the bilateral factor. As such, the Board finds that the evidence supports the Veteran’s entitlement to a separate 20 percent, and no higher, for mild incomplete paralysis of the sciatic nerve bilaterally. Lastly, the competent evidence does not reflect any other objective neurologic abnormalities associated with the low back disability, such as any in the left lower extremity, bladder, or bowel, so as to warrant any additional separate ratings. REASONS FOR REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). For the disabilities on appeal, the Veteran was last afforded a VA examination in March 2015, more than three years ago. The Board recognizes that, generally the mere passage of time is not a sufficient basis for a new examination. See Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007) (holding that the mere passage of time, without evidence of worsening, does not require a new examination); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). In this instance, however, the Veteran has described worsening symptoms of her hips and knees. In VA treatment records from March 2015 to July 2018, the Veteran has shown increasing pain causing functional impairment. She complained that her knees would buckle causing her to fall. See July 2017 VA Outpatient Treatment Record. Likewise, she stated that she underwent knee surgery and is currently out of work. See April 2018 VA Outpatient Treatment Record. In a November 2016 physical rehabilitation note, the Veteran bilateral hips manifested with objective evidence of pain on motion. Additionally, the Veteran has asserted increasing bilateral hip pain, generally rated as high as 7 out of 10. See January 2017 VA Outpatient Treatment Record. Likewise, the length of time from the Veteran’s last examination does not allow the Board to determine accurately the current level of severity of her service-connected bilateral hip and knee disabilities. The Board notes that, where an increase in the disability rating is at issue for an already service-connected disability, as it is here, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When available evidence is too old for an adequate evaluation of the Veteran’s current condition, VA’s duty to assist includes providing a new examination. Weggerman v. Brown, 5 Vet. App. 281 (1993). As noted above, not only is this last examination too remote, but the examination may no longer reflect the Veteran’s current level of disability regarding his claimed condition. Consequently, a more contemporaneous examination is needed to fully and fairly evaluate the Veteran’s claim of an increased rating for her service-connected bilateral hip and knee disabilities. See Allday v. Brown, 7 Vet. App. 517 (1995) (where the record does not adequately reveal current state of disability, fulfillment of duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination); Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). The matters are REMANDED for the following action: 1. Obtain and associate with the record all relevant VA treatment and any private treatment records identified by the Veteran. All records/responses received must be associated with the claims file. 2. After the foregoing, schedule the Veteran for a VA examination with a qualified clinician (examiner). The record, including a copy of this remand, must be made available to and reviewed by the examiner. The examiner should address the following: (a.) The current nature and severity of the Veteran’s bilateral hip disability. (b.) The current nature and severity of the Veteran’s bilateral knee disability. (Continued on the next page)   3. After completing the above actions, and any other development as may be indicated by any response received because of the action taken in the paragraph above, the claims must be re-adjudicated. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and her representative and after they have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD I. Umo, Associate Counsel