Citation Nr: 1815702 Decision Date: 03/14/18 Archive Date: 03/23/18 DOCKET NO. 13-34 161 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to a rating in excess of 20 percent for lumbosacral strain. 2. Entitlement to a compensable rating for pseudo folliculitis barbae. 3. Entitlement to service connection for a left knee disability. 4. Entitlement to service connection for a right knee disability. 5. Entitlement to service connection for a left shoulder disability. 6. Entitlement to service connection for bilateral hearing loss. 7. Entitlement to service connection for tinnitus. 8. Entitlement to service connection for hypertension. 9. Entitlement to service connection for sleep apnea. 10. Entitlement to a rating in excess of 20 percent for right carpal tunnel syndrome as of September 4, 2015. 11. Entitlement to service connection for residuals of a cerebrovascular accident secondary to hypertension. 12. Entitlement to a total disability rating on the basis of individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Amanda Christensen, Counsel INTRODUCTION The Veteran had active military service from June 1974 to March 1995. This appeal comes to the Board of Veterans' Appeals (Board) from February 2010. March 2010, and September 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Decatur, Georgia. The Veteran provided sworn testimony in support of his appeal of the first nine issues listed above during a hearing before the undersigned Veterans Law Judge in January 2017. In March 2015 the Veteran filed a substantive appeal in response to the February 2015 statement of the case (SOC) denying an effective date prior to January 20, 2011 for the grant of a 30 percent rating for right upper extremity carpal tunnel syndrome and the grant of a 20 percent rating for left upper extremity carpal tunnel syndrome. However, while the appeal of those issues has been perfected, the record reflects they have not yet been certified to the Board. As the Agency of Original Jurisdiction (AOJ) may still be taking action on these issues, the Board will not accept jurisdiction over them at this time, but they will be the subject of a subsequent Board decision, if otherwise in order. In September 2015 the Veteran filed a partial VA Form 21-526EZ, claiming service connection for metastatic lung cancer, esophageal cancer, and liver cancer, all secondary to exposure to Agent Orange. As the issues have not been adjudicated by the AOJ, they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND A SOC was last issued as to the issues of entitlement to a rating in excess of 20 percent for lumbosacral strain; a compensable rating for pseudo folliculitis barbae; and service connection for a left knee disability, right knee disability, left shoulder disability, bilateral hearing loss, tinnitus, hypertension, and sleep apnea in October 2013. Since that time evidence, including VA treatment records from November 2013 to August 2015 and VA examination reports from February 2015 that include opinions on the etiology of right and left knee disabilities and sleep apnea, has been added to the record. While the Board is cognizant that 38 U.S.C.A. § 7105 (e) provides an automatic waiver of initial AOJ review if a veteran submits evidence to the AOJ or the Board with, or after submission of, a substantive appeal in cases where the substantive appeal was filed on or after February 2, 2013, see 38 U.S.C.A. § 7105 (e) (West 2014); see also VA Fast Letter 14-02 (May 2, 2014), the Board finds that an automatic waiver of jurisdiction cannot be applied in this case. Specifically, the Board notes that the Veteran did not "submit" the evidence, but rather VA generated the relevant evidence; the provision in that case does not provide for an automatic waiver of jurisdiction, but rather requires that the Veteran explicitly waive AOJ initial review of that evidence. In January 2018 the Board sent the Veteran a letter inquiring as to whether the Veteran wished to waive consideration of the evidence by the AOJ. Later that month the Veteran responded to the letter and requested that his case be sent back to the AOJ for review of the additional evidence that was added to the record. Therefore, as the Veteran did not waive initial consideration of the new evidence by the AOJ, and the evidence is new and pertinent to the issues on appeal, the law requires that the Board return the appeal to the AOJ for initial consideration of the new evidence. Upon remand, this new evidence, as well as any additional evidence submitted since the issuance of the October 2013 SOC should be considered when readjudicating the Veteran's claim. Also, in November 2015 the Veteran filed a notice of disagreement with the AOJ's September 2015 rating decision denying entitlement to TDIU and service connection for residuals of a cerebrovascular accident and reducing the rating for right carpal tunnel syndrome from 30 percent to 20 percent effective September 4, 2015. However, no SOC has been issued as required. See Manlincon v. West, 12 Vet. App. 238 (1999). On remand, the AOJ must issue a SOC with respect to the issue of entitlement to service connection for residuals of a cerebrovascular accident secondary to hypertension, entitlement to individual unemployability, and entitlement to a rating in excess of 20 percent for right carpal tunnel syndrome effective September 4, 2015. Upon receipt of the SOC, the Veteran will then have an opportunity to complete the steps necessary to perfect his appeal of the claim to the Board by filing a timely substantive appeal (e.g., a VA Form 9 or equivalent statement). 38 C.F.R. §§ 20.200 , 20.202, 20.300, 2.301, 20.302, 20.303, 20.304, 20.305. Accordingly, the case is REMANDED for the following action: 1. Readjudicate the issues of the issues of entitlement to a rating in excess of 20 percent for lumbosacral strain; a compensable rating for pseudo folliculitis barbae; and service connection for a left knee disability, right knee disability, left shoulder disability, bilateral hearing loss, tinnitus, hypertension, and sleep apnea with consideration of the additional evidence associated with the claims folder since the issuance of the October 2013 SOC. If the claim remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC) and allow an appropriate time for response. 2. Send the Veteran a SOC concerning his claims for entitlement to service connection for residuals of a cerebrovascular accident secondary to hypertension, entitlement to individual unemployability, and entitlement to a rating in excess of 20 percent for right carpal tunnel syndrome effective September 4, 2015. If, and only if, he submits a timely substantive appeal in response to the SOC, thereby perfecting his appeal as to the claim, should it be returned to the Board for further appellate consideration. 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). _________________________________________________ H. SEESEL 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).