Citation Nr: 1754216	
Decision Date: 11/28/17    Archive Date: 12/07/17

DOCKET NO.  12-31 209A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUE

Entitlement to a total disability rating based on individual unemployability (TDIU) due to a service-connected disability.  


REPRESENTATION

Veteran represented by: Jan Dils, Attorney


ATTORNEY FOR THE BOARD

I. Umo, Associate Counsel


INTRODUCTION

The Veteran served on active duty from January 1974 to May 1976.

This case comes before the Board of Veterans' Appeals (Board) from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California.  

This case was previously before the Board in May 2017, where the issue on appeal was remanded for procedural issues and further evidentiary development.  

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.


REMAND

Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that she is afforded every possible consideration.  38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017).  

Here, the Board remanded the TDIU issue to provide the Veteran with the required notice and allow her to submit a completed VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability).  In August 2017, the RO notified the Veteran of the necessity to file the VA Form 21-8940.  The Veteran did not provide a response; therefore, the RO issued a Supplemental Statement of the Case (SSOC) in September 2017, denying the Veteran's claim for a TDIU due to the missing application.  In November 2017, the Veteran submitted the VA Form 21-8940, with additional evidence to support her TDIU claim.  As such, a remand is necessary to allow the RO to adjudicate the TDIU based on the application and evidence submitted.

Accordingly, the case is REMANDED for the following action:

1.  Obtain all outstanding VA treatments records and associate with the claims file.  All records/responses received must be associated with the electronic claims file.  

2.  After conducting any development deemed necessary, adjudicate the claim of entitlement to a TDIU, to include the question of whether referral for an extraschedular TDIU is warranted.  If the benefit sought on appeal is not granted, the Veteran should be provided a Supplemental Statement of the Case and an appropriate time for response.  The case should then be returned to the Board for further consideration, if otherwise in order.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  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 38 U.S.C.A. §§ 5109B, 7112 (West 2014).




_________________________________________________
KRISTI L. GUNN
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2014), 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) (2017).



Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

w

Connecting to %s