Citation Nr: 1754220	
Decision Date: 11/28/17    Archive Date: 12/07/17

DOCKET NO.  10-36 873	)	DATE

On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia


1.  Entitlement to service connection for skin lesions (face and back) melanoma/carcinoma, to include as due to in-service herbicide exposure.

2.  Entitlement to service connection for a recurrent lung disorder to include spots on lungs, to include as due to in-service herbicide exposure.

3.  Entitlement to total disability rating due to unemployability (TDIU).


Veteran represented by:	Jan D. Dils, Attorney


Shauna M. Watkins, Counsel


The Veteran served in the active military service from September 1965 to September 1967, to include a tour in the Republic of Vietnam during the Vietnam War.

These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Huntington, West Virginia, Regional Office (RO), which denied service connection for a skin disorder, to include lesions of the face and the back, melanoma, and carcinoma, and a lung disorder, to include spots on the lungs.

In March 2013, the Board determined that the issue of a TDIU had been raised and remanded that issue and the remaining issues on appeal to the RO for additional action.

In April 2016 and July 2017, the Board again remanded the appeal to the Agency of Original Jurisdiction (AOJ) for further development.  The appeal has now been returned to the Board.

In August 2010, VA received the Veteran's Substantive Appeal concerning the denial of his claim of entitlement to service connection for bladder cancer.  However, a subsequent September 2017 rating decision granted that claim.  Therefore, that claim has been resolved, and is no longer before the Board.  See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement (NOD) must thereafter be timely filed to initiate appellate review of the claim concerning "downstream" issues, such as the compensation level assigned for the disability and the effective date); see, too, 38 C.F.R. § 20.200 (2017).

The Board acknowledges that the issue of entitlement to apportionment of the Veteran's benefits for his spouse has been perfected and certified to the Board.  However, the issue is currently pending the scheduling of a Board hearing.  As such, the issue will be the subject of a subsequent Board decision.

The appeal is REMANDED to the AOJ.  VA will notify the Veteran if further action is required.


The Board previously remanded this appeal in pertinent part for a Supplemental Statement of the Case (SSOC) to be issued to the Veteran and his representative.  A SSOC was issued to the Veteran and his former representative in September 2017.  There is no indication in the record that the Veteran's current representative, Jan D. Dils, received a copy of the September 2017 SSOC.  The issuance of this SSOC to the wrong representative represents a violation of 38 C.F.R. § 19.31(b) (2017) and requires correction at the AOJ level.  See 38 C.F.R. § 19.9(a) (2017); Stegall v. West, 11 Vet. App. 268, 271 (1998).

Accordingly, the case is REMANDED for the following action:

The September 2017 SSOC must be reissued, with a copy forwarded to Jan D. Dils, the Veteran's attorney.  If additional pertinent evidence has been received since the issuance of the September 2017 SSOC, it must be addressed in this new Supplemental Statement of the Case.  A reasonable period of time must be allowed for a response.

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

These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board 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. §§ 5109B, 7112 (2012).

Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C. § 7252 (2012), only a decision of the Board 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).

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