Citation Nr: 1808572	
Decision Date: 02/09/18    Archive Date: 02/20/18

DOCKET NO.  12-29 414	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUE

Entitlement to a compensable rating for surgical scars of the left knee.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

C. Davidoski, Associate Counsel


INTRODUCTION

The Veteran had active military service from August 1984 to June 1986.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision of the Roanoke, Virginia Regional Office (RO) of the Department of Veterans Affairs (VA). 

This case was previously before the Board in March 2017.  At that time, the Board remanded the Veteran's claim for a compensable rating for surgical scars of the left knee in order for the RO to issue the Veteran a statement of the case.  A second issue, service connection for a left shoulder disability, was also remanded in the March 2017 Board remand and was subsequently granted by the RO.

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the Veteran if further action is required.


REMAND

In the March 2017 Board remand, the Board found that the Veteran had submitted a timely notice of disagreement (NOD) regarding the issue of entitlement to a compensable rating for surgical scars of the left knee, which had been received in September 2016. The Board noted that a statement of the case (SOC) had not been issued.  Where a notice of disagreement has been filed with regard to an issue, and a SOC has not been issued, as in this case, the appropriate Board action is to remand the issue to the RO for issuance of a SOC.  Manlincon v. West, 12 Vet. App. 238 (1999).  The Board instructed the AOJ to issue a SOC in light of the Veteran's timely NOD.

A review of the record, however, does not reflect that a SOC was issued, but rather, the claim was addressed in the August 2017 supplemental statement of the case (SSOC).  Governing regulations provide that a SSOC may not be used to announce a decision by the agency of original jurisdiction on an issue not previously addressed in a SOC, or to respond to a NOD on a newly appealed issue that was not addressed in an SOC. 38 C.F.R. § 19.31 (a) (2017).  Additionally, this would allow for the Veteran to submit a substantive appeal in order to perfect the appeal.  

Of note, in September 2017, the Veteran wrote and specifically requested a statement of the case to be issued.  He also argued that an examination had not been provided to assess the impact of his scars. 

Given these specific arguments, the Board will remand the issue for compliance with the prior remand directives.  See Stegall v. West, 11 Vet. App. 268 (1998).

Accordingly, the case is REMANDED for the following action:

Issue the Veteran a SOC on the issue of entitlement to a compensable rating for surgical scars of the left knee.  The Veteran and his representative must be clearly advised of the need to file a substantive appeal if the Veteran wishes to complete an appeal of the issue.  If, and only if, an appeal of the issue is perfected, return the appeal to the Board.

The Veteran has the right to submit additional evidence and argument on the matter 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).

_________________________________________________
MATTHEW W. BLACKWELDER 
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).