Citation Nr: 0001860 Decision Date: 01/24/00 Archive Date: 02/02/00 DOCKET NO. 98-02 921 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Dissatisfaction with the initial rating assigned following the grant of service connection for left upper extremity weakness. 2. Dissatisfaction with the initial rating assigned following the grant of service connection for left lower extremity weakness. 3. Dissatisfaction with the initial rating assigned following the grant of service connection for weakness of the left side of the face. (The issue of whether the veteran's retroactive benefits awarded by a July 1997 RO decision are subject to recoupment of an overpayment previously determined to have been due to sole administrative error, is the subject of a separate decision). REPRESENTATION Appellant represented by: Allen E. Falk, Attorney ATTORNEY FOR THE BOARD J. A. Markey, Counsel INTRODUCTION The veteran served on active duty from November 1967 to September 1971, and from October 1983 to December 1984. This matter came before the Board of Veterans' Appeals (Board) from an October 1996 action by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey, implementing a June 1996 Board decision. A notice of disagreement was received in December 1996. A statement of the case was issued in March 1997. A substantive appeal was received from the veteran in March 1997. A hearing was scheduled to be held before a member of the Board in Washington, D.C. in August 1998, but the hearing was canceled by request of the veteran. REMAND By a Board decision dated in June 1996, service connection was established for the residuals of a head injury, including the effects of a cerebrovascular accident. In implementing this decision, the RO, in an October 1996 action, established service connection for an intracerebral hemorrhage due to aneurysm, evaluated as 100 percent disabling from December 15, 1987 to April 1, 1988; for left upper extremity weakness, evaluated as 20 percent disabling effective April 1, 1988; for left lower extremity weakness, evaluated as 10 percent disabling effective April 1, 1988; and for weakness of the left side of the face, evaluated as 10 percent disabling effective April 1, 1988. See 38 C.F.R. § 4.124a, Diagnostic Code 8008 (rate such accidents as 100 percent disabling for 6 months, and rate the residuals thereafter). Although not altogether clear, it appears that the veteran and his representative disagreed with the reduction of the veteran's overall disability evaluation from 100 to 50 percent effective April 1, 1988, and the issues on appeal have been characterized as listed above. In any event, it is pointed out that the United States Court of Appeals of Veterans Claims (Court) has noted that there was a distinction between a claim based on the veteran's dissatisfaction with the initial rating (a claim for an original rating) and a claim for an increased rating. It was also indicated that in the case of an initial rating, separate ratings can be assigned for separate periods of time based on the facts founds, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). The Court in AB v. Brown, 6 Vet. App. 35 at 38 (1993) stated that a claimant will generally be presumed to be seeking the maximum benefit allowed by law and it follows that an increased rating remains in controversy where less than the maximum is awarded. At this point, the Board acknowledges that by rating action in March 1998, the RO granted a total disability rating based on individual unemployability effective in September 1997. However, the issues pertaining to the proper rating of the veteran's service-connected weakness of the left upper and lower extemities and of the left side of the face, effective from April 1988, remain on appeal. It is clear from a review of the October 1996 RO decision that the only evidence reviewed in evaluating the residuals of the intercerebral hemorrhage (i.e. the left upper extremity, left lower extremity, and left sided facial weakness) was the report of a July 1996 VA examination, despite the fact that there appears to be relevant evidence of record dating back to 1987. As such, this evidence must be reviewed by the RO prior to further Board consideration, especially in light of the dictates of Fenderson (as a side note, the Board realizes that Fenderson post-dated the RO's October 1996 action; however, the Board is of the opinion that this relevant evidence still should have been reviewed at the time of the October 1996 action). In view of the above, this matter is REMANDED to the RO for the following action: The RO should readjudicate the veteran's claims for higher initial evaluations for his service-connected left upper extremity weakness, left lower extremity weakness, and weakness of the left side of the face, based on all relevant evidence (since 1987) of record; the RO should also consider whether the veteran suffered from other residuals of the intracerebral hemorrhage during the relevant time period. Consideration should also be given to the application of "staged ratings" as enunciated in Fenderson (and noted above). If the action taken is adverse to the veteran, he and his representative should be furnished a supplemental statement of the case that contains a summary of the relevant evidence and a citation and discussion of the applicable laws and regulations. They should also be afforded the opportunity to respond to that supplemental statement of the case before the claim is returned to the Board, if appropriate. Following completion of the above actions, the case should be returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. 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 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 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. D. C. Spickler Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), 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) (1999).