Citation Nr: 21028294
Decision Date: 05/10/21	Archive Date: 05/10/21

DOCKET NO. 19-26 386
DATE: May 10, 2021

REMANDED

Entitlement to service connection for lumbar spine disability is remanded.

Entitlement to service connection for dermatitis is remanded.

Entitlement to service connection for a right knee disability is remanded.

REASONS FOR REMAND

The Veteran served on active duty from June 1991 to March 1996. 

This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office, the Agency of Original Jurisdiction (AOJ). 

Although the July 2019 statement of the case also listed other issues, the Veteran limited his appeal to the issues of service connection for lumbar spine, right knee and dermatitis disabilities, and did not perfect an appeal as to the remaining issues. Specifically, the Veteran did not specify which of the issues he was appealing on his August 2019 substantive appeal. See August 2019 VA Form 9. The RO requested clarification from the Veteran in October 2019, the RO indicated that all issues had been accepted as on appeal due to the lack of clarity on the VA Form 9 unless otherwise indicated by the Veteran. See October 2019 RO Correspondence. 

The Veteran responded in October 2019 that he was limiting his argument to the issues listed above. See October 2019 Reply. The RO then certified the appeal in November 2019.

Finally, in October 2020, the Board sent correspondence clarifying that the Veteran had "withdrawn" the issues of service connection for left knee, bilateral hearing loss, tinnitus, bilateral pes planus, bilateral shin splints, and entitlement to an initial compensable evaluation for recurrent scalp folliculitis with his October 2019 correspondence. See October 2020 Correspondence. 

While the Board correspondence indicated the Veteran had "withdrawn" these issues in October 2019, this was prior to the certification of the appeal. Here, the Board finds the Veteran did not perfect an appeal as to the issues of service connection for left knee, bilateral hearing loss, tinnitus, bilateral pes planus, bilateral shin splints, and entitlement to an initial compensable evaluation for recurrent scalp folliculitis. Therefore, these issues are not a part of the appeal.

1. Entitlement to service connection for lumbar spine disability is remanded.

2. Entitlement to service connection for dermatitis is remanded.

3. Entitlement to service connection for a right knee disability is remanded.

In February 2021, the Board notified the Veteran that he had the right to request the AOJ review additional evidence added to the claims file after the July 2019 statement of the case. The Board explained that, if the Veteran did not respond in 45 days from the date of the letter, it would assume that he did not wish to have the Board decide his appeal at that time, and the case would be remanded to the AOJ for review of the evidence. He was also advised that he may waive the AOJ's initial consideration of the evidence. See February 2021 Correspondence.

The Veteran requested that the Board send his case back to the AOJ for review of the additional evidence in a written response the following month. See March 2021 Response. Therefore, a remand is necessary to have the AOJ review the additional evidence in connection with the appeal to ensure due process.

The matters are REMANDED for the following action:

Review the evidence received since the July 2019 SOC and readjudicate the claims on appeal. If the determination remains adverse to the Veteran, provide a supplemental statement of the case to the Veteran and their representative.

 

 

J. B. FREEMAN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. Trickey

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.