Citation Nr: 18156357 Decision Date: 12/11/18 Archive Date: 12/07/18 DOCKET NO. 17-03 863 DATE: December 11, 2018 REMANDED Entitlement to compensation pursuant to 38 U.S.C. § 1151 for residuals, neck surgery is remanded. Entitlement to service connection for diabetes mellitus is remanded. Entitlement to service connection for peripheral neuropathy of the right upper extremity is remanded. Entitlement to service connection for peripheral neuropathy of the left upper extremity is remanded. Entitlement to service connection for peripheral neuropathy of the right lower extremity is remanded. Entitlement to service connection for peripheral neuropathy of the left lower extremity is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1964 to August 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from December 2015 and August 2018 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In his substantive appeals (VA Form 9), the Veteran requested a Board hearing before a Veterans Law Judge for his entitlement to compensation pursuant to 38 U.S.C. § 1151 for residuals, neck surgery claim. He subsequently withdrew his hearing request. Thus, the hearing request is considered to be withdrawn. The Board finds that more development is necessary prior to final adjudication of the claims on appeal. One of the matters the Board must address is which issue or issues are properly before it at this time. Under the provisions of 38 U.S.C. § 7105(a), an appeal to the Board must be initiated by a notice of disagreement and completed by a substantive appeal after a statement of the case is furnished to the veteran. In essence, the following sequence is required: There must be a decision by the RO, the veteran must express timely disagreement with the decision, VA must respond by explaining the basis of the decision to the veteran, and finally the veteran, after receiving adequate notice of the basis of the decision, must complete the process by stating his argument in a timely- filed substantive appeal. See 38 C.F.R. §§ 20.200, 20.201, 20.202, and 20.203. In its August 2018 rating decision, the RO, in part, denied service connection for diabetes mellitus, peripheral neuropathy of the upper right extremity, peripheral neuropathy of the upper left extremity, peripheral neuropathy of the lower right extremity and peripheral neuropathy of the lower right extremity. In August 2018, the Veteran filed the appropriate notice of disagreement (NOD) form as to the August 2018 rating decision regarding the denials of service connection for diabetes mellitus, peripheral neuropathy of the upper right extremity, peripheral neuropathy of the upper left extremity, peripheral neuropathy of the lower right extremity and peripheral neuropathy of the lower right extremity. While the Veteran expressed disagreement with these issues in the August 2018 rating decision, it appears that no subsequent statement of the case was ever issued. Under Manlincon v. West, 12 Vet. App. 238, 240 (1999), the Board must instruct the RO that the issues of entitlement to service connection for diabetes mellitus, peripheral neuropathy of the upper right extremity, peripheral neuropathy of the upper left extremity, peripheral neuropathy of the lower right extremity and peripheral neuropathy of the lower right extremity remain pending in appellate status (see 38 C.F.R. § 3.160(c)) and require further action. See 38 U.S.C. § 7105; 38 C.F.R. § 19.26. In this regard, it is noteworthy that these claims are not before the Board at this time and will only be before the Board if the Veteran files a timely substantive appeal. The Board’s actions regarding these issues are taken to fulfill the requirements of the Court in Manlincon. Regarding the issue of entitlement to compensation pursuant to 38 U.S.C. § 1151 for residuals, neck surgery, the Board notes that since the last statement of the case (SOC) for this issue that was issued in January 2017, additional evidence has been added to the claims file which includes VA treatment records dated as recently as July 2018. Notably, the Veteran explicitly declined to waive initial AOJ consideration of this evidence in an October 2018 submission. The appellate scheme set forth in 38 U.S.C. § 7104 (a) contemplates that pertinent evidence will first be reviewed at the AOJ so as not to deprive the claimant of an opportunity to prevail with a claim at that level. See generally Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). As such, the Board has no recourse but to remand this issue for initial consideration of the additional evidence. Id. The matters are REMANDED for the following action: 1. The RO should issue a statement of the case to the Veteran addressing the matters of entitlement to service connection for diabetes mellitus, peripheral neuropathy of the upper right extremity, peripheral neuropathy of the upper left extremity, peripheral neuropathy of the lower right extremity and peripheral neuropathy of the lower right extremity, including citation to all relevant law and regulation pertinent to these claims. The Veteran must be advised of the time limit for filing a substantive appeal. 38 C.F.R. § 20.302(b). Then, only if the appeal is timely perfected, these issues are to be returned to the Board for further appellate consideration, if otherwise in order. 2. Readjudicate the issue of entitlement to compensation pursuant to 38 U.S.C. § 1151 for residuals, neck surgery. If any benefit sought on appeal remains denied, the Veteran should be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD James A. DeFrank, Counsel