Citation Nr: 20021764 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 18-37 166 DATE: March 26, 2020 REMANDED Entitlement to a restoration of a 70 percent disabling rating for service-connected mental disabilities effective May 1, 2017. Entitlement to a disability rating exceeding 70 percent for service-connected mental disabilities. Entitlement to an earlier effective date than December 10, 2013 for service connection for mental disabilities. Entitlement to an earlier effective date than December 10, 2013 for service connection for tinnitus. Entitlement to a compensable disability rating for a bilateral hearing loss disability. Entitlement to an earlier effective date than December 10, 2013 for service connection for a bilateral hearing loss disability. Entitlement to a disability rating exceeding 10 percent for gastroesophageal reflux disease (GERD). Entitlement to an earlier effective date than December 10, 2013 for a compensable disability rating for GERD. Entitlement to a disability rating exceeding 10 percent for a right ankle disability. Entitlement to an earlier effective date than June 26, 1999 for service connection for a right ankle disability. Entitlement to a disability rating exceeding 10 percent for a lumbar spine disability prior to November 22, 2016. Entitlement to a disability rating exceeding 40 percent for a lumbar spine disability beginning November 22, 2016. Entitlement to an earlier effective date than June 26, 1999 for service connection for a lumbar spine disability. Entitlement to a disability rating exceeding 10 percent for left lower extremity radiculopathy. Entitlement to an earlier effective date than June 5, 2012 for service connection for left lower extremity radiculopathy. Entitlement to service connection for a heart disability. Entitlement to service connection for a left ankle disability. REASONS FOR REMAND The Veteran served on active duty from January 1992 to August 1995 and from April 1996 to June 1999. This appeal comes to the Board of Veterans’ Appeals (Board) from June 2014 and February 2017, and March 2017 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). Many of the issues on appeal were adjudicated in the April 2016 Statement of the Case (SOC), and VA received a substantive appeal of the SOC in regard to all issues in November 2016. In the November 2016 submission, the Veteran’s former attorney noted that the substantive appeal submission was not timely because the RO did not mail a copy of the SOC to the Veteran’s attorney. The Veteran’s attorney requested that the RO take the oversight in the mailing procedures into account and continue processing the appeal. However, in a December 2016 letter, the RO ultimately rejected the appeal on the grounds that it was not timely without discussion of the attorney’s reasons for the untimely filing. Upon review of the record, the Board finds that while the RO was aware that the Veteran was represented by the attorney and was submitting copies of correspondence to the attorney, the April 2016 SOC does not indicate a copy was mailed to the attorney as required. See 38 C.F.R. § 19.30(a) (“The Statement of the Case will be forwarded to the appellant at the latest address of record and a separate copy provided to his or her representative (if any).”). Under the circumstances of this case, and as an untimely substantive appeal is not a jurisdictional bar to appellate review, the Board finds that it should exercise jurisdiction over the issues identified in the April 2016 SOC. See Percy v. Shinseki, 23 Vet. App. 37, 45-46 (2009) (holding that failing to file a substantive appeal within 60 days of receipt of an SOC is not a jurisdictional bar to prosecuting an appeal and that VA may, through its actions, waive the timeliness issue). The issues have also been recharacterized to reflect subsequent modifications to the disability ratings by the RO. The Veteran’s claims for earlier effective dates and increased disability ratings for migraines were separately adjudicated in a September 2018 Board decision. The Board notes that a large amount of relevant evidence has been received into the record since the claims on appeal were last adjudicated by the Agency of Original Jurisdiction (AOJ). In a December 2019 letter, the Board requested that the Veteran waive his right to have the additional evidence reviewed by the AOJ in the first instance in the context of his claims. The Board informed the Veteran that if a response was not received by the end of the 45-day time period, the Board would assume that the Veteran does not wish to have the Board decide the appeal at this time and that the Board would remand the appeal to the AOJ for review. As the Board has not received a response from the Veteran within the allotted time, the Board will remand these matters to the AOJ for consideration of the additional evidence in the first instance. Additionally, the Board finds that the AOJ should obtain current VA examinations of the Veteran’s disabilities before it readjudicates these issues as it has been many years since examinations were conducted to assess their current severity. The matters are REMANDED for the following action: 1. The AOJ should contact the Veteran and any current representatives and request their assistance in identifying any outstanding relevant records. The AOJ should make reasonable attempts to obtain all identified outstanding records and associate them with the Veteran’s claims file. 2. After associating all outstanding relevant records with the Veteran’s claims file, the AOJ should afford the Veteran current VA examinations of his mental health, GERD, hearing loss and associated tinnitus, ankles, spine, and associated radiculopathies. The AOJ should provide the examiners with complete copies of the claims file. While ensuring that the standard function assessment forms are completed by the examiners, the AOJ should ensure the following concerns are addressed: (a.) The AOJ should ensure that the VA examiners attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the AOJ should ensure that the examiners provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. (b.) The AOJ should ensure that the VA ankles examiner provides an opinion as to whether it is at least as like as not (50 percent or greater probability) that the Veteran’s right ankle disability has caused or aggravated (temporarily or permanently) a disability of the Veteran’s left ankle to include any functional limitations due to pain. (c.) If an examiner is unable to provide an opinion on these matters, the AOJ should ensure that the examiner states whether the inability to render an opinion is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. After completing the above action and any other necessary development, the claims must be readjudicated. If a claim remains denied, a Supplemental Statement of the Case must be provided to the Veteran and current representatives. After the Veteran has had adequate opportunity to respond, the appeal must be returned to the Board for appellate review. C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael Duffy, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.