Citation Nr: 1807026 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 07-05 198 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been submitted to reopen the claim for service connection for kidney/renal failure. 2. Whether new and material evidence has been submitted to reopen the claim for service connection for a cervical spine disorder. 3. Whether new and material evidence has been submitted to reopen the claim for service connection for a right arm/shoulder disorder. 4. Whether new and material evidence has been submitted to reopen the claim for service connection for a right knee disorder. 5. Whether new and material evidence has been submitted to reopen the claim for service connection for a left knee disorder. 6. Whether new and material evidence has been submitted to reopen the claim for service connection for a left ankle disorder. 7. Entitlement to service connection for cephalgia. 8. Entitlement to service connection for a right ankle disorder. 9. Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from March 1990 to March 1994. In a February 2006 rating decision of the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA), the 10 percent rating in effect for the service-connected left shoulder disability was increased to 20 percent, effective August 2005. Moreover, service connection for renal failure was denied. The Veteran disagreed with the denial of service connection and with the 20 percent rating, and the current appeal ensued. A Travel Board hearing was held in April 2010 before the undersigned Veterans Law Judge (VLJ) as to these issues. A copy of the transcript of that hearing is of record. In a September 2010 decision, the Board denied the claim of service connection for renal failure and remanded the claim for an increased rating for the left shoulder. The increased rating claim was remanded once again in April 2013. In September 2013, the Veteran filed claims for service connection for numerous other conditions, and in a December 2013 Board decision, the claim for a rating in excess of 20 percent for the left acromioclavicular (AC) joint (minor) was denied. All additional claims were remanded. Although numerous claims had previously been denied by the RO and were final, they were not properly classified as such at the time of the 2013 remand. In effect, the claims remanded (and now properly reclassified where appropriate) were as follows: whether new and material evidence has been submitted to reopen the claim for service connection for kidney failure; whether new and material evidence has been submitted to reopen the claim for service connection for a cervical spine disorder; whether new and material evidence has been submitted to reopen the claim for service connection for a right arm/shoulder disorder; whether new and material evidence has been submitted to reopen the claims for service connection for thoracic and lumbar spine disorders, whether new and material evidence has been submitted to reopen the claim for service connection for left-sided sciatica (left-sided numbness); whether new and material evidence has been submitted to reopen the claim for service connection for a right knee disorder; whether new and material evidence has been submitted to reopen the claim for service connection for a left knee disorder; whether new and material evidence has been submitted to reopen the claim for service connection for a left ankle disorder; entitlement to service connection for cephalgia; entitlement to service connection for a right knee disorder; and entitlement to a TDIU. Subsequent development includes an October 2016 rating action. In that decision, service connection was granted for degenerative joint disease (DJD) and osteoarthritis of the lumbar spine with left-sided sciatic pain, and a 20 percent evaluation was assigned, effective September 2013. Moreover, service connection for right lower extremity lumbar radiculopathy (claimed as right sciatica) was granted, and a 10 percent rating was assigned, effective September 2013. The previous denials of service connection for renal failure, bilateral knee disorders, a cervical spine disorder, a left ankle disorder, and a right arm/shoulder disorder were confirmed. Service connection was also denied for cephalgia, a right ankle disorder, and for a TDIU. The Veteran was notified of this decision, as well as his appellate rights. It is noted that a supplemental statement of the case (SSOC) was issued as to the TDIU claim in March 2017. The claim was again denied. The Veteran submitted a timely notice of disagreement (NOD) as to the October 2016 denials in October 2017. This included the denial of service connection for left-sided sciatica. As previously reported, however, service connection was granted for the Veteran's lumbar spine disorder with left-sided sciatica, and as there has been no submission of a NOD with the rating assigned, there is no issue for adjudication by the Board. Additional claims were addressed in a January 2018 rating decision. For the most part, those claims are not part of this appeal. However, it is noted that the RO denied the claim for a right arm/shoulder condition in that new and material evidence had not been submitted. That claim which was already before the Board remains on appeal. This appeal was processed using the Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. In addition to the VBMS file, there is a Legacy Content Manager paperless claims file associated with the Veteran's claims. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required on his part. REMAND As noted above, in an October 2016 rating decision, the RO confirmed the previous denials regarding service connection claims for renal failure, a cervical spine disorder, a right arm/shoulder disorder, bilateral knee disorders, and a left ankle disorder. Service connection was denied in the first instance as to cephalgia and a right ankle disorder. A TDIU was also denied. The Veteran submitted a timely NOD (VA FORM 21-0958) with the denials. Other than the claim for a TDIU, a statement of the case (SOC) has not been sent to the Veteran regarding these issues. In Manlincon v. West, 12 Vet. App. 238 (1999), the United States Court of Appeals for Veterans Claims indicated that in a case in which a veteran expressed disagreement in writing with a decision by an AOJ and the AOJ failed to issue an SOC, the Board must remand the matter for issuance of an SOC. After the RO has issued the SOC, the claim should be returned to the Board only if the Veteran perfects the appeal in a timely manner. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). Moreover, the TDIU claim is in inextricably intertwined with the pending service connection claims. The TDIU claim cannot be reviewed while those pending claims remain unresolved. Thus adjudication of the TDIU claim must be held in abeyance pending further development of the Veteran's other claims. Accordingly, the case is REMANDED for the following action: The AOJ should undertake all actions required by 38 C.F.R. § 19.26 (2017), including issuance of an SOC, so that the Veteran may have the opportunity to complete an appeal on the service connection issues as listed on the title page herein (if he so desires) by filing a timely substantive appeal. Only those issues which have been perfected on appeal should be returned to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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).