Citation Nr: 0001465 Decision Date: 01/18/00 Archive Date: 01/27/00 DOCKET NO. 97-27 298A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for degenerative disc disease of the lumbar spine, currently evaluated as 20 percent disabling. 2. Entitlement to an initial evaluation in excess of 10 percent for degenerative disc disease of the cervical spine. 3. Entitlement to an initial compensable evaluation for an anterior labral tear of the right shoulder (major). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Odlum, Associate Counsel INTRODUCTION The veteran had active military service from April 1992 to August 1995 with approximately eight years of prior active service. This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions from the Los Angeles, California Department of Veterans Affairs (VA) Regional Office (RO). REMAND The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. In March 1996, the RO, in pertinent part, granted service connection for an anterior labral tear of the right shoulder, assigning a noncompensable rating. The veteran indicated his disagreement with this decision in April 1996. In April 1997, the RO issued a rating decision continuing, in pertinent part, its noncompensable rating for the right shoulder disability. The veteran submitted a statement in June 1997 indicating his disagreement with the April 1997 rating decision. In a statement received by the RO in September 1997 the veteran specifically indicated that he was appealing, in pertinent part, the portion of the February 1997 rating decision letter referencing continuation of the noncompensable rating of the right shoulder disability. There is no indication that the veteran was ever provided with a Statement of the Case (SOC) pertaining to the issue of entitlement to an initial compensable rating for his right shoulder disability. When there has been an initial RO adjudication of a claim and an NOD has been filed as to its denial, the veteran is entitled to an SOC, and the RO's failure to issue an SOC is a procedural defect requiring remand. Manlincon v. West, 12 Vet. App. 238 (1999); Godfrey v. Brown, 7 Vet. App. 398, 408-10 (1995); see also Bernard v. Brown, 4 Vet. App. 384 (1993). The Board also notes that the veteran has requested a hearing before the Board at a local VA office. In November 1999 a notice was sent to the veteran requesting that he clarify which type of hearing before the Board he wanted to attend. It was specified that if no response was given, it would be assumed that he still wanted a hearing before the Board at the RO, and that his case would be remanded for such a hearing. The record shows that this hearing has not yet been afforded. In light of the above, and to ensure full compliance with due process requirements, this case is remanded for the following development: 1. The veteran should be notified that he may submit additional evidence and argument in support of the issues on appeal in accordance with 38 U.S.C.A. § 5103(a) (West 1991). All pertinent evidence received should be associated with the claims file. 2. The RO will take such development or review action as it deems proper regarding the issue of entitlement to an initial compensable evaluation for an anterior labral tear of the right shoulder. If such action does not resolve the disagreement either by granting the benefit sought or through withdrawal of the notice of disagreement, such agency shall prepare a statement of the case. 3. The veteran should be scheduled to appear at a personal hearing before a Member of the Board sitting at the RO as soon as it may be feasible. Notice should be sent to the veteran and his service representative. The veteran should be asked to submit any other information, evidence, or arguments that may be pertinent to the appeal at that time. Thereafter, the case should be returned to the Board for final appellate review, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the appellant until he is notified by the RO. RONALD R. BOSCH Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board is appealable to the Court. 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) (1999).