Citation Nr: 1543634 Decision Date: 10/13/15 Archive Date: 10/19/15 DOCKET NO. 13-04 481 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Whether new and material evidence has been submitted to warrant reopening the claim for service connection for diabetes mellitus. 2. Whether new and material evidence has been submitted to warrant reopening the claim for service connection for a liver condition, to include elevated liver enzymes. 3. Whether new and material evidence has been submitted to warrant reopening the claim for service connection for bilateral carpal tunnel syndrome. 4. Entitlement to service connection for sinusitis. 5. Entitlement to service connection for bilateral pes planus. 6. Entitlement to service connection for a bilateral hip condition, to include as secondary to service-connected lumbar strain with arthritis. 7. Entitlement to service connection for gastroesophageal reflux disease (GERD). 8. Entitlement to service connection for sleep apnea. 9. Entitlement to a disability rating in excess of 10 percent for residuals of a right knee torn medial meniscus, status post partial medial meniscectomy. 10. Entitlement to a disability rating in excess of 10 percent for tinnitus. 11. Entitlement to a compensable disability rating for bilateral hearing loss. 12. Entitlement to a disability rating in excess of 20 percent for acromioclavicular separation, right shoulder, with mild chronic pain. 13. Entitlement to a disability rating in excess of 10 percent for lumbar strain with arthritis. 14. Entitlement to a disability rating in excess of 10 percent for meralgia paresthetica of the right thigh. 15. Entitlement to a disability rating in excess of 10 percent for meralgia paresthetica of the left thigh. 16. Entitlement to an initial disability rating in excess of 10 percent for residuals of left tibia/fibula fracture with knee impairment. 17. Entitlement to an initial compensable disability rating for tension headaches. 18. Entitlement to an initial compensable disability rating for erectile dysfunction, to include special monthly compensation (SMC) for loss of use of a creative organ. REPRESENTATION Appellant represented by: John. S. Berry, Attorney ATTORNEY FOR THE BOARD A. Dean, Associate Counsel INTRODUCTION The Veteran had active military service from October 1976 to October 1982, from September 1987 to September 1992, from March 1999 to December 1999, and from February 2010 to January 2015. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2006, November 2008, January 2010, and February 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas; Lincoln, Nebraska; New Orleans, Louisiana; and Seattle, Washington, respectively. The claims file was subsequently transferred to the RO in Wichita, Kansas. This appeal was processed electronically using the Veterans Benefits Management System (VBMS) paperless claims processing system. Any future consideration of this appeal should account for this electronic record. The Board acknowledges that the issue of entitlement to an initial disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD) has been perfected, but not yet certified to the Board. The Board's review of the claims file reveals that the Agency of Original Jurisdiction (AOJ) may still be taking action on this issue. As such, the Board will not accept jurisdiction over it at this time, but it will be the subject of a subsequent Board decision, if otherwise in order. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND A February 2015 rating decision denied service connection for GERD and sleep apnea, and granted service connection for residuals of left tibia/fibula fracture with knee impairment, tension headaches, and erectile dysfunction (issues 7-8 and 16-18 on the cover page of this appellate decision). In August 2015, the Veteran filed a notice of disagreement as to the denials of service connection and the disability ratings assigned for the granted claims. A statement of the case (SOC) must be issued. Manlincon v. West, 12 Vet. App 238, 240-241 (1999). Regarding the remaining issues, in May, August, and September 2015, the Board received additional evidence on behalf of the Veteran which was not considered by the AOJ. Specifically, additional service treatment records and private medical records were submitted after the December 2014 statement of the case (SOC) and supplemental SOCs (SSOC). Section 501 of the Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law (PL) 112-154, amends 38 U.S.C. § 7105 by adding new paragraph (e). Under 38 U.S.C. § 7105(e), if the claimant or the claimant's representative submits new evidence with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests AOJ consideration. Currently, VA has not interpreted section 7105(e) to extend to evidence that was not submitted by the Veteran, such as evidence gathered by VA pursuant to the duty to assist; therefore, if evidence was developed by VA, the Board will not assume that the Veteran has knowingly and voluntarily waived AOJ consideration of such evidence. When evidence is received after the transfer of a case to the Board, as is the case here, the Board will determine what action is required with respect to the additional evidence. 38 C.F.R. § 19.37(b) (2013). Under 38 C.F.R. § 20.1304(c) (2013), any pertinent evidence submitted following certification of an appeal to the Board must be referred to the AOJ for review, "unless this procedural right is waived by the appellant or representative, or unless the Board determines that the benefit or benefits to which the evidence relates may be fully allowed on appeal without such referral." 38 C.F.R. § 20.1304(c). Here, the Veteran's substantive appeal was received prior to February 2, 2013. His procedural right of initial AOJ review was not been waived by the appellant or his representative, and the new pertinent evidence does not guarantee that the benefits sought may be fully allowed on appeal without such referral. See 38 C.F.R. § 20.1304(c). For these reasons, the Veteran's appeal will be remanded for appropriate action so that the above-noted evidence is appropriately addressed with a SSOC. Accordingly, the case is REMANDED for the following action: 1. Issue the Veteran and his representative an SOC concerning his claim of entitlement to service connection for GERD and sleep apnea, and for higher initial ratings for residuals of left tibia/fibula fracture with knee impairment; tension headaches; and erectile dysfunction, to include SMC for loss of use of a creative organ. If, and only if, the Veteran files a timely substantive appeal should the claim be returned to the Board. 2. Review all evidence added to the claims file since the December 2014 SOC/SSOCs, especially including the new service treatment records and private medical records. After undertaking any additional development which may be necessary, readjudicate the remaining claims. If the benefits sought are not granted, the Veteran and his representative should be furnished with a Supplemental Statement of the Case (SSOC) and afforded a reasonable opportunity to respond to the SSOC before the record is returned to the Board for further review. 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.A. §§ 5109B, 7112 (West 2014). _________________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).