Citation Nr: 18145983 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 93-14 409 DATE: October 30, 2018 REMANDED Entitlement to an effective date earlier than March 22, 2001 for service connection for a left hip disability is remanded. Entitlement to an effective date earlier than March 22, 2001 for service connection for a right hip disability is remanded. Entitlement to service connection for cataracts is remanded. Entitlement to an initial rating in excess of 20 percent for a cervical spine disability is remanded. Entitlement to an initial rating in excess of 20 percent for a lumbar spine disability is remanded. Entitlement to an initial compensable rating for left leg shortening is remanded. Entitlement to an initial compensable rating for right leg shortening is remanded. Entitlement to an initial compensable rating for dry eyes is remanded. Entitlement to special monthly compensation (SMC) higher than "M" level is remanded. Entitlement to an effective date earlier than January 23, 2007 for service connection for dry eyes is remanded. (Additional issues, including apportionment issues, waiver of overpayment recovery, and issues requiring a panel decision, are addressed in separate decisions with the same docket number.) REASONS FOR REMAND The Veteran died in September 2017. The appellant is the Veteran’s child and has been accepted as the Veteran’s substitute for purposes of processing this appeal to completion. 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010. The issues of entitlement to an effective date earlier than March 22, 2001 for the award of service connection for left and right hip disabilities and increased rating claims come before the Board of Veterans’ Appeals by order of the United States Court of Appeals for Veterans Claims in November 2016, which vacated an August 2015 Board decision and remanded these matters for additional development. Originally, a July 1992 rating decision denied increased ratings for polymyopathy of the hips and ankles. Increased ratings were granted for left and right ankle polymyopathy disabilities in February 2005 and for left and right hip polymyopathy in June 2008. Service connection was established for degenerative joint disease of the hips in June 2008, and for cervical spondylosis, lumbar spine intervertebral disc degeneration, right and left leg shortening, and dry eyes in August 2012. The Veteran subsequently perfected an appeal as to the assigned rating and effective date issues involving these disabilities included in this decision. The issue of entitlement to service connection for cataracts was denied in a June 2013 rating decision. Entitlement to special monthly compensation at the “M” level was granted in a January 2017 rating decision and the Veteran has appealed seeking a higher level of special monthly compensation. In February 2013, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. The Veteran had previously testified a video conference hearing before a different Veterans Law Judge in September 2011. Following that hearing, the Board remanded service connection claims in February 2012 for degenerative disc disease of the cervical and lumbar spine, for right and left leg shortening, and vision loss. Those specific service connection claims were fully resolved in the Veteran’s favor by rating decisions granting service connection in August 2012 and September 2012. Therefore, the subsequently perfected appeal as to assigned ratings and effective dates involving these disabilities for which the undersigned Veterans Law Judge received testimony are appropriately addressed in this single judge decision. However, the February 2012 remand included increased rating issues for the service-connected disabilities of degenerative joint disease of the right and left hips, and polymyopathy of the right and left hips and ankles. The issue of entitlement to an earlier effective date for the award of a total disability rating based upon individual unemployability as a result of service-connected disability (TDIU) was remanded in February 2012 as inextricably intertwined with the other remanded issues. The Veteran had presented testimony as to those increased rating and earlier effective date claims at his September 2011 Board hearing. As the Veterans Law Judge presiding over each hearing must participate in the final determination, those issues must be addressed in a separate Board panel decision of three judges. 38 C.F.R. § 20.707. 1. Entitlement to an effective date earlier than March 22, 2001 for the award of service connection for a left hip disability is remanded. 2. Entitlement to an effective date earlier than March 22, 2001 for the award of service connection for a right hip disability is remanded. Service connection for degenerative joint disease of the right and left hips was granted in a June 2008 decision by the Agency of Original Jurisdiction. An effective date of March 22, 2001, for the award of service connection was assigned for each hip. In a November 2016 Memorandum Decision, the Court specifically found that the Veteran had filed a timely notice of disagreement with the June 2008 decision. The Court specified that the Veteran had filed a timely notice of disagreement with the issues of entitlement to earlier effective dates for the grant of service connection for right and left hip degenerative joint disease. No statement of the case has been issued addressing the issues of entitlement to earlier effective dates for the grant of service connection for right and left hip degenerative joint disease. Therefore, those claims must be remanded for the issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). 3. Entitlement to service connection for cataracts is remanded. 4. Entitlement to an initial rating in excess of 20 percent for a cervical spine disability is remanded. 5. Entitlement to an initial rating in excess of 20 percent for a lumbar spine disability is remanded. 6. Entitlement to an initial compensable rating for left leg shortening is remanded. 7. Entitlement to an initial compensable rating for right leg shortening is remanded. 8. Entitlement to an initial compensable rating for dry eyes is remanded. 9. Entitlement to special monthly compensation (SMC) higher than "M" level is remanded. 10. Entitlement to an effective date earlier than January 23, 2007 for the award of service connection for dry eyes is remanded. In a June 2018 letter, the Board informed the Appellant that additional evidence had been received that was not previously considered in a decision by the Agency of Original Jurisdiction. The Appellant was informed that he had a right to have the Agency of Original Jurisdiction review the evidence before the Board does, but if he wished, he may waive that right by submitting a waiver in writing. The Board informed the Appellant that if he did not respond within 45 days of the date of the notice letter, the Board would remand the appeal to the Agency of Original Jurisdiction for review. The Appellant did not respond to the June 2018 letter. Therefore, in accordance with the June 2018 letter, the case must be remanded for initial review of the additional evidence by the Agency of Original Jurisdiction. A supplemental statement of the case is needed. 38 C.F.R. § 19.31 (2017). The matters are REMANDED for the following action: 1. Issue a statement of the case addressing the issues of entitlement to earlier effective dates for service connection for right and left hip degenerative joint disease. Notify the appellant of his appeal rights and that he must submit a timely substantive appeal if he wants appellate review of those issues. If a timely appeal is perfected, return those issues to the Board. 2. Re-adjudicate the pending service connection, increased rating, and earlier effective date for service connection for dry eyes claims. Specifically consider all evidence added to the appeal subsequent to the issuance of the last statements of the case and supplemental statements of the case. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Layton, Counsel