Citation Nr: 18146452 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 13-13 451 DATE: October 31, 2018 REMANDED Entitlement to an increased rating for service-connected degenerative joint disease of the right ankle (now classified as right ankle triple arthrodesis), evaluated as 10 percent disabling prior to November 1, 2017, as 40 percent disabling beginning November 1, 2017, and as 10 percent disabling beginning August 6, 2018, is remanded. Whether the June 13, 2018 Form 9 was timely filed. REASONS FOR REMAND The Veteran had active service from June 1981 to March 1984. The Veteran presented sworn testimony before the undersigned Veterans Law Judge during a December 2014 Board hearing. A transcript of that hearing has been associated with the claims file. This matter has come before the Board on several occasions. In June 2017, the Board remanded the above-listed issue for further development. The requested actions having been completed to the extent possible, the claim was readjudicated by the Regional Office (RO) in an March 2018 Supplemental Statement of the Case (SSOC). However, the Board finds further development is necessary prior to appellate adjudication. After this matter was returned to the Board in April 2018, the RO decreased the rating for the Veteran’s right ankle condition to 10 percent effective August 6, 2018. The Board has characterized the issue on appeal accordingly. As noted, this matter was returned to the Board and resumed its place on the Board’s docket in April 2018. In August 2018, the Veteran’s representative purported to withdraw representation. After an appeal is certified to the Board, a representative may not withdraw services in the appeal unless good cause is shown on motion and such motions must be in writing. 38 C.F.R. § 20.608(b)(2). While the representative’s attempt to withdraw was in writing, it was not in the form of the motion. More importantly, the submission contained no discussion or indication of the reason for the withdrawal and did not indicate that the Veteran had been informed of his representative’s withdrawal. To the extent the submission could be construed as a motion to withdraw as representative of the Veteran, it is denied. 1. Entitlement to an increased rating for the service-connected right ankle condition is remanded. Following the March 2018 Supplemental Statement of the Case, records from the Social Security Administration were added to the claims file. The Board asked the Veteran if he was willing to waive review by the Agency of Original Jurisdiction (AOJ), and he requested AOJ review. The Veteran was also afforded a VA examination evaluating the severity of his service-connected right ankle in August 2018. As relevant records from the Social Security Administration and a VA examination report were received after the March 2018 Supplemental Statement of the Case, and the Veteran specifically requested AOJ consideration of the new evidence, the issue must be remanded for AOJ consideration. In his August 2018 Notice of Disagreement (NOD), the Veteran stated the 40 percent rating for his ankle should have been retroactive to 2014. He is advised that since his appeal for an increased rating had already been pending, adjudication will consider whether a higher rating should have been assigned from any earlier date. In other words, the Board is not bound by the date the RO assigned for the increase, and when his claim returns to the Board, that question will be part of his appeal. Since this appeal originates from his claim for an increase in 2010, he is assured the Board will consider all evidence dating back to his claim. 2. Whether the June 13, 2018 Form 9 was timely filed is remanded. In August 2018, the Veteran was notified that his June 13, 2018 VA Form 9 was untimely filed. In August 2018, the Veteran filed a Notice of Disagreement (NOD) addressing this issue. When an appellant files a timely NOD as to a particular issue and no statement of the case (SOC) is furnished, the Board should remand, rather than refer, the claim for issuance of an SOC. See 38 C.F.R. § 19.9(c); Manlincon v. West, 12 Vet. App. 238 (1999). The RO has not provided a SOC on this claim, so a remand is required. The Veteran should understand that, after the RO issues an SOC, he must timely file a substantive appeal (e.g. VA Form 9) to perfect his appeal and permit a decision on the merits by the Board. See 38 C.F.R. §§ 20.200, 20.202, 20.302(b). The matter is REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from August 2018 to the present. 2. Send the Veteran a SOC with respect to the issue of whether the June 13, 2018 VA Form 9 was timely. The RO should consider the Report of Contact dated April 2, 2018, wherein the Veteran requested an extension of time to file his appeal. This claim will be considered by the Board only if a timely appeal is filed. 3. After any additional VA records have been received, readjudicate the remanded issue of entitlement to increased ratings for the service-connected right ankle, considering all evidence received since the March 2018 SSOC. Please reference the Board’s phrasing of this issue, as shown above, to include 3 staged ratings in effect during the appellate period. If the benefits sought on appeal are not granted, the Veteran and his representative (if any) should be furnished with a supplemental statement of the case and afforded an opportunity to respond. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Parsons, Associate Counsel