Citation Nr: 23012018 Decision Date: 02/27/23 Archive Date: 02/27/23 DOCKET NO. 17-05 878A DATE: February 27, 2023 REMANDED Entitlement to a compensable rating for xerosis cutis is remanded. Entitlement to a compensable rating for gastroesophageal reflux disease (GERD) with hiatal hernia is remanded. Entitlement to service connection for an intestinal parasite is remanded Entitlement to service connection for a left upper extremity peripheral neuropathy. Entitlement to service connection for right upper extremity peripheral neuropathy is remanded. Entitlement to service connection for left hand carpal tunnel syndrome is remanded. Entitlement to service connection for right hand carpal tunnel syndrome is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for left elbow lateral epicondylitis is remanded. Entitlement to service connection for right elbow lateral epicondylitis is remanded. Entitlement to service connection for status post laceration to left thumb area with paresthesia is remanded. Entitlement to an increased rating in excess of 10 percent for a right ankle disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from August 1989 to November 2012. The Board notes that while the Veteran's claims were pending appeal, the Agency of Original Jurisdiction (AOJ) granted the Veteran's claim for service connection for reactive airway disease in an August 2022 rating decision. Thus, this is no longer on appeal before the Board. 1. Entitlement to a compensable rating for xerosis cutis; a compensable rating for (GERD); service connection for an intestinal parasite; service connection for bilateral upper extremity peripheral neuropathy; service connection for bilateral carpal tunnel syndrome; service connection for bilateral hearing loss; and bilateral elbow lateral epicondylitis are remanded. The Board notes that in December 2022, the Veteran was sent correspondence for a request to waive AOJ consideration of additional evidence received after his most recent August 1, 2022 Supplemental Statement of the Case (SSOC). Namely, a series of VA examinations conducted on August 23 and 24 of 2022 and VA treatment records from July 2022 to December 2022. However, neither the Veteran nor his representative responded within the requisite 45 day window. Therefore, in the absence of a direct waiver, in accordance with the action outlined in the correspondence, and to respect due process, the Board must remand these issues so that the AOJ can consider the new evidence of record since the August 1, 2022 Supplemental Statement of the Case (SSOC) and appropriately readjudicate. See 38 C.F.R. §§ 19.31, 19.37(a). 2. Entitlement to an increased rating in excess of 10 percent for a right ankle disability. The Veteran perfected an appeal for a compensable rating for a right ankle disability in a February 2017 substantive appeal (Form 9) following a January 2017 Statement of the Case (SOC). The Agency of Original Jurisdiction (AOJ) then increased the Veteran's right ankle disability rating to 10 percent in a June 2022 rating decision and did not subsequently include the issue in the August 1, 2022 SSOC. This omission was an error. As the Veteran had appealed the noncompensable rating in February 2017, he is presumed to seek the highest possible rating for his right ankle disability. AB v. Brown, 6 Vet. App. 35, 39 (1993). As such, the June 2022 increased rating of 10 percent for the right ankle disability did not satisfy his appeal for an increased rating for his right ankle disability. Furthermore, over the course of the last six years since the June 2017 SOC considerable evidence has been submitted to the AOJ; however, no Supplemental Statement of the Case for the issue of an increased rating for a right ankle disability was prepared prior to the August 2022 Certification of the appeal to the Board and no waiver was received. See 38 C.F.R. § 19.37 (a). As such, the Board finds that before adjudication can proceed the AOJ should produce an SSOC on the issue of the right ankle disability taking into account the evidence added to the claims file since the The matters are REMANDED for the following action: 1. Contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for his disabilities. The Veteran should be requested to sign any necessary authorization for release of medical records to VA, and appropriate steps should be made to obtain any identified records. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. If the records are unavailable, notify the Veteran in accordance with 38 C.F.R. § 3.159. 2. After completing the requested actions and any additional notification and/or development deemed warranted, readjudicate the issues on appeal in a Supplemental Statement of the Case. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Acosta-Davis, James 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.