Citation Nr: 1806827 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 12-26 734 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim for service connection for a skin disability (originally claimed as tinea versicolor). 2. Entitlement to service connection for a bilateral knee disability. 3. Entitlement to service connection for a dental disability for purposes of eligibility for outpatient dental treatment. 4. Entitlement to service connection for a disability of the lymph nodes. 5. Entitlement to an initial compensable disability rating for erectile dysfunction. 6. Entitlement to an initial disability rating in excess of 10 percent for right (major) elbow strain. 7. Entitlement to an initial compensable rating for right (major) elbow strain with limitation of flexion. 8. Entitlement to an initial compensable disability rating for right (major) elbow strain with limited supination/pronation. REPRESENTATION Veteran represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD Russell Veldenz, Counsel INTRODUCTION The Veteran served on active duty from January 1986 to January 1990. This matter is before the Board of Veterans' Appeals (Board) on appeal of an October 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran originally requested a hearing before the Board. In December 2017, the Veteran withdrew that request in writing. 38 C.F.R. 20.704(e) (2017). In September 2016, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) for additional development. The Veteran filed a notice of disagreement in March 2017 (denial of an increased rating for a left ankle disability) and a notice of disagreement in January 2018 (denial of service connection for a left hip disability) to a February 2017 rating decision. While the Board is cognizant of the United States Court of Appeals for Veterans Claims (Court) decision in Manlincon v. West, 12 Vet. App. 238 (1999), the Board notes that in this case, unlike in Manlincon, the AOJ has fully acknowledged the notices of disagreement and is currently in the process of adjudicating the appeal. Action by the Board at this time may serve to actually delay the AOJ's action on that appeal. As such, no action will be taken by the Board at this time, and the issues presently before the AOJ pertaining to the increased rating for the left ankle and service connection for the left hip disability will be the subject of a later Board decision, if ultimately necessary. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. 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 claims As noted, the Board remanded the Veteran's claims in September 2016. The Board directed the AOJ to update the Veteran's medical records and then issue a Supplemental Statement of the Case (SSOC). Once that was accomplished, the Veteran was to be afforded a hearing before the Board. Thereafter, the AOJ did update the Veteran's VA treatment records. As noted above, the Veteran withdrew his request for a hearing. The Board notes, however, that the AOJ has never issued the SSOC readjudicating the claims and considering all new evidence added to the record since the last SSOC in January 2016. The Court held that a remand by the Board imposes upon the Secretary of the VA a duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). It was further held that where the remand orders of the Board are not complied with, the Board errs in failing to insure compliance. Id. Furthermore, as noted, the AOJ has added new evidence as well. When evidence is received prior to the transfer of a case to the Board, an SSOC must be furnished to the veteran, and his or her representative, if any, as provided in 38 C.F.R. § 19.31 unless the additional evidence is duplicative or not relevant to the issue on appeal. 38 C.F.R. § 19.37(a) (2017). In addition, an SSOC is to be issued if evidence is developed pursuant to Board remand. 38 C.F.R. § 19.31(c) (2017). The Board acknowledges that the Veteran also submitted additional evidence and waived consideration of this evidence by the AOJ; however, this does not negate the need for an SSOC in this case. See 38 C.F.R. §§ 19.31(c), 19.37(a), 20.1304(c); see also Stegall, 11 Vet. App. 271. Here, as the AOJ did not prepare an SSOC considering the evidence received since the January 2016 SSOC, a remand is required to afford the Veteran procedural due process so that an SSOC addressing the additional evidence may be issued and the Veteran afforded an opportunity to respond. That way, he is not deprived of the opportunity to prevail at the AOJ level. Accordingly, the case is REMANDED for the following action: The AOJ should review the record, to include all evidence in the claims file which has not previously been addressed in the most recent SSOC of record (January 2016), and re-adjudicate the issues. If any benefit sought is not granted, the Veteran and his representative must be furnished with an SSOC and afforded an opportunity to respond before the record is returned to the Board for further review The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board is appealable to the Court. 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).