Citation Nr: 1228693 Decision Date: 08/21/12 Archive Date: 08/30/12 DOCKET NO. 06-22 808 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial, compensable rating for calcified pleural plaques due to asbestos exposure, to include on an extra-schedular basis pursuant to 38 C.F.R. § 3.321(b). 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected calcified pleural plaques, to include on an extra-schedular basis pursuant to 38 C.F.R. § 4.16(b). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD David A. Brenningmeyer, Counsel INTRODUCTION The Veteran served on active duty from September 1963 to September 1966. This appeal to the Board of Veterans' Appeals (Board) arose from an April 2005 rating decision in which the RO granted service connection and assigned an initial 0 percent (noncompensable) rating for calcified pleural plaques, effective August 31, 2004. In August 2005, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in May 2006, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in June 2006. Because the appeal involves disagreement with the initial rating assigned following the award of service connection for calcified pleural plaques, the Board has characterized that matter in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability). In July 2010, the Board expanded the appeal to also include the matter of a TDIU due to service-connected calcified pleural plaques, and remanded the claims on appeal to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further action, to include additional development of the evidence, and for consideration of a higher rating on an extra-schedular basis. After taking further action, the AMC denied the claims (as reflected in a June 2011 supplemental SOC (SSOC)) and returned these matters to the Board for further appellate consideration. In July 2011, the Veteran submitted additional evidence without a waiver of initial RO consideration of the evidence. In September 2011, the Board again remanded the claims on appeal to the RO, via the AMC, for further action, to include additional development of the evidence. After taking further action, the AMC continued to deny the claims (as reflected in a June 2012 SSOC) and returned these matters to the Board for further appellate consideration. For the reasons expressed below, the matters on appeal are being remanded to the RO. VA will notify the Veteran when further action, on his part, is required. REMAND In correspondence dated in July 2012, the Veteran indicated that he wished to have a Board hearing at the RO (i.e., a Travel Board hearing). Pursuant to 38 C.F.R. § 20.700 (2011), a hearing on appeal will be granted to an appellant who requests a hearing and is willing to appear in person. See also 38 U.S.C.A. § 7107 (West 2002) (pertaining specifically to hearings before the Board). Accordingly, and because the RO schedules Travel Board hearings, a remand of these matters to the RO is warranted. Accordingly, these matters are hereby REMANDED to the RO for the following action: The RO should schedule the Veteran for a Travel Board hearing in accordance with his request. The RO should notify the Veteran and his representative of the date and time of the hearing. See 38 C.F.R. § 20.704(b) (2011). After the hearing has been held, the claims file should be returned to the Board in accordance with current appellate procedures. The purpose of this REMAND is to afford due process; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The appellant need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). _________________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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 the appeal. 38 C.F.R. § 20.1100(b) (2011).