Citation Nr: 18132386
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 15-38 743
DATE:	September 6, 2018
ORDER
An effective date prior to February 19, 2013, for the award of service connection for major depressive disorder is dismissed. 
An effective date prior to February 19, 2013, for the award of service connection for limitation of extension right knee is dismissed. 
An effective date prior to February 19, 2013, for the award of service connection for patellar dystrophic calcification right knee is dismissed. 
Service connection for bilateral pes planus is dismissed. 
Service connection for bilateral lower extremity restless leg syndrome is dismissed. 
Whether new and material evidence has been received to reopen the issue of entitlement to service connection for residuals of pneumonia, alternatively claimed as a lung disability, is dismissed. 
Service connection for residuals of pneumonia, alternatively claimed as a lung disability, is dismissed. 
An initial rating of 70 percent, but not more, for major depressive disorder is dismissed.
FINDING OF FACT
In a July 2018 decision, the Board fully adjudicated the Veteran’s claims for an effective date prior to February 19, 2013, for the awards of service connection for a major depressive disorder, limitation of extension right knee, and patellar dystrophic calcification of the right knee; service connection for bilateral pes planus and bilateral lower extremity restless leg syndrome; the application to reopen the claim of service connection for residuals of pneumonia; service connection for residuals of pneumonia; and an initial rating of 70 percent, but not more, for a major depressive disorder.
CONCLUSION OF LAW
The claims for an effective date prior to February 19, 2013, for the awards of service connection for a major depressive disorder, limitation of extension right knee, and patellar dystrophic calcification of the right knee; service connection for bilateral pes planus and bilateral lower extremity restless leg syndrome; the application to reopen the claim of service connection for residuals of pneumonia; service connection for residuals of pneumonia; and an initial rating of 70 percent, but not more, for a major depressive disorder, are dismissed.  38 U.S.C § 7104(a).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from September 1976 to September 1979.
In July 2018, the Board remanded the Veteran’s claims for an initial rating in excess of 10 percent for patellar dystrophic calcification, right knee; a compensable initial rating for limitation of extension, right knee; an initial rating in excess of 10 percent degenerative joint disease, lumbar spine; an initial compensable rating for bilateral hearing loss; and for a total rating based on individual unemployability due to service-connected disability (TDIU).  These issues have not since be re-certified to the Board and it does not appear that the actions requested by the Board have been undertaken.
For some reason that is unclear, the case was returned to the Board.
Given that the actions requested by the Board have not been undertaken, the Board declines to take any further action on these issues at this time.  This delay is needed to ensure that the claimants are is afforded full due process in the matter.  See 38 C.F.R. § 3.103; Gray v. McDonald, 27 Vet. App. 313, 327 (2015) (Due process protections apply to disability compensation proceedings before the Board) (citing Cushman v. Shinseki, 576 F.3d 1290 (Fed. Cir. 2009)); see also Carter v. McDonald, 794 F.3d 1342, 1346 (Fed. Cir. 2015) (regulatory requirement of notice in § 1.525(d) can only sensibly be construed to require that the notice to counsel be timely, which requires, at a minimum, notice before the expressly stated deadline has passed). 
The actions requested by the Board in July 2018 should be undertaken.
(Continued on the next page)
 
The Claims
In a July 2018 decision, the Board fully adjudicated the Veteran’s claims for an effective date prior to February 19, 2013, for the awards of service connection for a major depressive disorder, limitation of extension right knee, and patellar dystrophic calcification of the right knee; service connection for bilateral pes planus and bilateral lower extremity restless leg syndrome; the application to reopen the claim of service connection for residuals of pneumonia; service connection for residuals of pneumonia; and an initial rating of 70 percent, but not more, for a major depressive disorder.  Therefore, the Board finds that there is no case or controversy for appellate review and these claims are dismissed.  See 38 U.S.C § 7104(a).
 
JOHN J CROWLEY
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Neil T. Werner, Counsel 

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