Citation Nr: 18123970
Decision Date: 08/03/18	Archive Date: 08/03/18

DOCKET NO. 16-07 921
DATE:	August 3, 2018
REMANDED
Entitlement to a disability rating in excess of 10 percent for limited motion of the left knee is remanded.
Entitlement to an initial disability rating in excess of 10 percent for instability of the left knee is remanded.
Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance, or at the housebound rate, is remanded.
REASONS FOR REMAND
The Veteran served on active duty in the U.S. Army from February 1960 to February 1963.  He also had service in the Army National Guard.  His decorations include the Parachute Badge.
In correspondence dated in March 2015, a notice disagreement (NOD) received in August 2015, and a substantive appeal dated in January 2016, the Veteran expressed what can reasonably be construed as a desire to file a claim for service connection for disability of the bilateral hands and an application to reopen a previously denied claim for service connection for disability of the feet.  However, he has not submitted a claim or an “intent to file a claim” for such disabilities, as required under current law.  See 38 C.F.R. § 3.155.  If he wishes to pursue such claims, he and/or his representative must submit the proper form(s).
Higher Ratings for the Left Knee
The only issue currently developed for the Board’s review is the Veteran’s entitlement to SMC based in the need for regular aid and attendance, or at the housebound rate.  The agency of original jurisdiction (AOJ) denied that claim in a May 2015 rating decision and the Veteran initiated an appeal by filing an NOD in August 2015.  In the NOD, the Veteran also expressed an intent to appeal the ratings then assigned for his service-connected left knee disability.
The assigned ratings for the Veteran’s left knee disability were not addressed in the May 2015 rating decision.  However, the August 2015 NOD was received less than 12 months after the AOJ issued a January 2015 rating decision that, in pertinent part, denied a rating in excess of 10 percent for traumatic arthritis of the left knee and granted service connection and an initial 10 percent rating for instability of the left knee.  See 38 C.F.R. §§ 20.201(b) (permitting the acceptance of any written communication expressing disagreement with an adjudicative determination and a desire to contest the result as an NOD under circumstances where the AOJ has not provided a form for that purpose); 20.302(a) (an NOD is timely if it is filed within one year of the date the AOJ mails a copy of its decision to the appellant).
The subsequent statement of the case (SOC) issued in December 2015 was limited to SMC and did not address the ratings then assigned for the left knee.  Where, as here, the Veteran files a timely NOD, and VA has not issued an SOC, the Board must remand the appeal for issuance of a SOC.  Manlincon v. West, 12 Vet. App. 238 (1999).
SMC 
The remanded claims for higher disability ratings for the left knee, as well as the Veteran’s potential claims for service connection for disability of the hands and feet (if properly filed), are intertwined with the matter of his entitlement to SMC under 38 U.S.C. § 1114(s).  See, e.g., Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 2 Vet. App. 180, 183 (1991) (issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on an appellant’s claim for another issue).  As such, the Board will defer adjudication of the SMC issue pending the development sought below.
These matters are REMANDED for the following action:
1.  Furnish the Veteran an appropriate application form for purposes of facilitating his apparent desire to file a claim for service connection for disability of the bilateral hands and an application to reopen a previously denied claim for service connection for disability of the feet.
2.  Conduct any development that may be indicated with respect to the matter of the Veteran’s entitlement to increased ratings for the service-connected disabilities of his left knee.  Unless the full benefit sought is granted, or the NOD is withdrawn, furnish an appropriate SOC to the Veteran and his representative.  These issues should not be returned to the Board unless the Veteran perfects an appeal by filing a timely substantive appeal.
3.  After completing the above, and any other action or development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran’s claim for SMC should be readjudicated based on the entirety of the evidence.  If the benefit sought remains denied, the Veteran and his representative should be issued a supplemental SOC.  An appropriate period of time should be allowed for response.
 
DAVID A. BRENNINGMEYER
Acting Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	M. Nye, Associate Counsel

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency


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