Citation Nr: 1237240	
Decision Date: 10/26/12    Archive Date: 11/09/12

DOCKET NO.  02-10 522	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1.  Entitlement to service connection for tinea pedis. 

2.  Entitlement to service connection for porokeratosis.

3.  Entitlement to a total rating based on individual unemployability on an extraschedular basis prior to June 1, 2008. 


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

K.S. Hughes, Counsel


INTRODUCTION

The Veteran had active duty service from April 1977 to April 1980. 

The issue of service connection for tinea pedis (claimed as athletic feet) was on appeal and denied by the Board of Veterans' Appeals (Board) in March 2009.  The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court).  By Memorandum Decision dated in November 2010, the Court determined that a claim for service connection for porokeratosis was reasonably raised by the record, set aside the Board's March 2009 denial and remanded the matters to the Board for compliance with its decision.  The claims of service connection for tinea pedis and porokeratosis were remanded by the Board in August 2011 for further development.

The November 2010 Memorandum Decision noted that the March 2009 Board decision had remanded the claim for total disability rating based upon individual unemployability (TDIU) and that this claim was not before the Court.  Notably, in a January 2011 decision, the Board granted TDIU from June 1, 2008 and remanded the matter of entitlement to TDIU, prior to June 1, 2008, on an extraschedular basis for submission to VA's Director of Compensation and Pension for consideration of entitlement to a TDIU under 38 C.F.R. § 4.16(b).  

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011).  38 U.S.C.A. § 7107(a)(2) (West 2002).

The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the appellant if further action is required.


REMAND

The Veteran presented testimony on all three issues at a hearing at the RO before a Veterans Law Judge in April 2008.  The Veterans Law Judge who conducted the hearing is no longer employed by the Board.  In September 2012, the Veteran was informed of this fact and of his right to request a hearing to be conducted by a Veterans Law Judge who will decide his case.  See 38 U.S.C.A. § 7107(c); 38 C.F.R. § 20.707.  In a response received by the Board later in September 2012, the Veteran indicated that he wished to testify at a videoconference hearing at the RO before a Veterans Law Judge.

The Board acknowledges that the TDIU prior to June 1, 2008, issue is still being developed pursuant to the January 2011 remand on that issue.  However, since the April 2008 Board hearing included testimony on all three issues, the new Board hearing to be conducted pursuant to the present remand will allow the Veteran the opportunity to also testify on the TDIU prior to June 1, 2008, issue.  The Board is therefore listing the issue in this remand since pursuant to 38 C.F.R. § 20.707, the Veterans Law Judge who conducts a hearing shall participate in the determination on that appeal.  

To ensure that full compliance with due process requirements has been met, the case is hereby REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011).  Expedited handling is requested.)

The RO should schedule the Veteran for a videoconference Board hearing.  Once the hearing is conducted, or in the event the appellant cancels his hearing request or otherwise fails to report, the case should be returned to the Board.

The appellant has the right to submit additional evidence and argument on the matters 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011).



_________________________________________________
ALAN S. PEEVY
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 your appeal.  38 C.F.R. § 20.1100(b) (2011).