BVA9501773 DOCKET NO. 92-03 552 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to an increased disability evaluation for residuals of left knee strain with early degenerative arthritis, currently rated 10 percent disabling. 2. Entitlement to an increased disability evaluation for residuals of low back injury, with degenerative joint and disc disease, rated 40 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant and his Spouse ATTORNEY FOR THE BOARD Brynn K. Bloomgren, Associate Counsel INTRODUCTION The appellant had active service from November 1950 to November 1952. This matter previously came before the Board of Veterans' Appeals (hereinafter the Board), which remanded the issues of entitlement to service connection for degenerative changes of the lumbar spine, to include degenerative disc disease and/or arthritic changes, and entitlement to a compensable evaluation for residuals of a low back injury, and entitlement to an increased evaluation for residuals of left knee strain with degenerative arthritis for further action in November 1993. In July 1994, the RO granted service connection for degenerative joint and disc disease and included it as part of the service connected residuals of low back injury, awarding a 40 percent disability evaluation. The RO notified the veteran by letter of August 11, 1994, that, with reference to the issue of evaluation of service connection for a low back condition and of service connection for degenerative changes of the lumbar spine, all benefits claimed had been allowed and that "no further action will be taken on your notice of disagreement which is considered withdrawn, unless we hear from you to the contrary within 60 days of the date of this letter." A supplemental statement of the case issued August 22, 1994, on the issue of an increase disability evaluation for a left knee condition, indicated that the 40 percent evaluation assigned the low back disorder, was considered a complete grant of the benefit sought on appeal concerning the evaluation of the service-connected low back condition. The RO did not issue a supplemental statement of the case on the issue of an increased disability rating for low back disorder and did not provide the veteran notice of the applicable laws and regulations used in evaluating that disorder. We note that the residuals of low back injury had previously been rated under 38 C.F.R. Part 4, § 4.73, Diagnostic Code 5320 as a muscle injury, but were most recently evaluated under 38 C.F.R. Part 4, § 4.71a, Diagnostic Codes 5003-5295. Generally, it is presumed that, when the veteran raises the issue of entitlement to an increased disability evaluation, he or she seeks the maximum benefit allowed by law unless there is an indication that the veteran seeks only a specified increase. AB v. Brown, 6 Vet.App. 35, at 38 and 39 (1993). Where there is no clearly expressed intent to limit the appeal to entitlement to a specific disability rating for a service-connected condition, the RO and Board are required to consider entitlement to all available ratings for that condition. AB at 38 (citing 38 C.F.R. §§ 20.204(c) (1992), only claimant or authorized representative may withdraw notice of disagreement); 20.202 (claimant will be presumed to be in agreement with any statement of fact which is not specifically contested); 20.302(c) (where appeal has been perfected, the response to a supplemental statement of the case is optional and is not required). Accordingly, the issue of entitlement to a disability evaluation in excess of 40 percent remains in appellate status, unless the veteran's notice of disagreement has been withdrawn. A review of the record, including the VA Form 646 in November 1994 and the informal presentation in January 1995, shows no explicit withdrawal of the veteran's notice of disagreement as to the issue of entitlement to an increased evaluation for residuals of low back injury and no clearly expressed intent to limit the appeal to entitlement to a 40 percent evaluation. Accordingly, this case must be remanded to the RO to provide the veteran a supplemental statement of the case as to this issue. Based on the foregoing, this case is REMANDED for the following action: The RO should furnish the veteran and his representative a supplemental statement of the case as to the issue of entitlement to an increased disability evaluation for residuals of a low back injury, including a summary of the relevant evidence, citation to all applicable diagnostic codes, including Diagnostic Code 5293, if appropriate, and reasons and bases for the evaluation assigned. The veteran and his representative should be afforded the opportunity to respond before the record is returned to the Board for further appellate review. The Board does not intimate any opinion as to the merits of the case. No further action is required of the veteran until he is notified. BETTINA S. CALLAWAY Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. 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) (1993).