Citation Nr: 1807679 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 04-23 997 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an initial disability rating in excess of 30 percent for corns and calluses of the feet, prior to April 26, 2012. 2. Entitlement to a disability rating in excess of 50 percent for corns and calluses of the feet, from April 26, 2012. REPRESENTATION Veteran represented by: John F. Cameron, Attorney at Law ATTORNEY FOR THE BOARD S. Hoopengardner, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1974 to October 1976. These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). These matters have a complicated procedural history. As relevant, a May 2003 Board decision granted entitlement to service connection for corns and calluses of the feet. A June 2003 rating decision implementing that grant assigned a 10 percent disability rating, effective from March 30, 2000. The Veteran appealed the assigned disability rating and a May 2004 rating decision increased the assigned disability rating to 30 percent, effective from March 30, 2000. A September 2007 Board decision denied a disability rating in excess of 30 percent, but this decision was vacated by the United States Court of Appeals for Veterans Claims in a February 2009 Order (citing a Joint Motion for Partial Remand). The Board remanded the claim in October 2010. In February 2012, the Board denied a disability rating in excess of 30 percent, but this decision was vacated by the Board in May 2013. The Board also remanded the claim at that time. A September 2016 rating decision grated an increased disability rating of 50 percent, effective April 26, 2012. The Board acknowledges that in a January 2017 statement the Veteran's representative stated that the Veteran "is entitled to an effective date earlier than April 26, 2012, for the grant of a fifty (50%) percent evaluation for his service connected corns and calluses of the feet. Your [Supplemental Statement of the Case (SSOC)] did not address this issue." The January 2017 SSOC addressed whether an initial disability rating in excess of 30 percent was warranted from March 30, 2000 to April 26, 2012. As such, while not characterizing the issue as an earlier effective date issue, the SSOC substantively addressed whether a 50 percent disability rating was warranted earlier than currently assigned. Accordingly, the representative's contention regarding an earlier effective date is encompassed by the increased initial disability rating claim on appeal. In addition, a January 2017 Statement of the Case (SOC) addressed multiple issues. A February 2017 VA Form 9 (Appeal to [the Board]) was submitted in response to the SOC. While the appeal for these issues has been perfected, the appeals for these issues have not yet been certified to the Board. As such, it appears that the AOJ is still working on these issues and the Board will therefore not accept jurisdiction over them at this time. These issues will be the subject of a subsequent Board decision, if otherwise in order. In addition, a February 2017 rating decision granted entitlement to a total disability rating based on individual unemployability (TDIU) and basic eligibility to Dependents' Educational Assistance (DEA), both effective February 13, 2003. An August 2017 VA Form 21-0958 (Notice of Disagreement [NOD]) was filed in response to this rating decision, specifically as to the effective date of the awards. A September 2017 letter from the Agency of Original Jurisdiction (AOJ) recognized receipt of this NOD. In addition, the electronic Veterans Appeals Control and Locator System (VACOLS) noted receipt of the NOD. As the AOJ has acknowledged receipt of the NOD and VACOLS indicates that the NOD has been recognized, this situation is distinguishable from Manlincon v. West, 12 Vet. App. 238 (1999), where a NOD had not been recognized. Manlincon is therefore not applicable in this case as to this rating decision/NOD. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND With respect to the increased rating claim on appeal, the most recent SSOC was issued by the AOJ on January 6, 2017. Subsequently, additional evidence was associated with the Veteran's claims file, to include VA treatment records that reflected treatment of the disability on appeal. See May 2017 VA Podiatry Treatment Note (received by VA in July 2017); see also October 2017 Vocational Evaluation (including information regarding the Veteran's functional impairment as a result of his service-connected feet disabilities dating to 2000). This evidence was not previously considered by the AOJ and the initial review of such evidence by the AOJ had not been waived. As such, in a December 6, 2017 letter, the Board informed the Veteran and his representative that additional evidence had been received that had not been considered by the AOJ and that the Veteran could waive initial AOJ review of the additional evidence. No response was received to this letter. Pursuant to the instructions in the December 6, 2017 letter, as no response was received in the specified time frame of 45 days (which from the December 6, 2017 letter would be January 20, 2018), the Board will assume that the Veteran does not wish to have the Board decide his claim at this time and therefore the claim will be remanded to the AOJ for initial review of the additional evidence. Also, while on remand, any outstanding VA treatment records must be obtained (the most recent VA treatment records of record are from May 2017). Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA treatment records (the most recent VA treatment records of record are from May 2017). 2. Review all evidence, including the additional evidence received subsequent to the January 7, 2017 SSOC, and readjudicate the Veteran's claims. If the benefits sought remain denied, furnish to the Veteran and his representative a SSOC. (CONTINUED ON NEXT PAGE) 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). These claims 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). _________________________________________________ J.W. FRANCIS 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).