Citation Nr: 1304946	
Decision Date: 02/11/13    Archive Date: 02/21/13

DOCKET NO.  08-18 967	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office 
in St. Louis, Missouri


THE ISSUE

Entitlement to a total disability rating based upon individual unemployability.


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

J. W. Kim, Counsel



INTRODUCTION

The Veteran served on active military duty from August 1966 to April 1971. 

This matter originally came to the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.  

In May 2010, the Board remanded the appeal for further development.  In a December 2011 supplemental statement of the case (SSOC), the Appeals Management Center (AMC) continued the denial of his appeal.

In January 2012, the Veteran filed a claim for an increased rating for diabetes mellitus.  As will be discussed below, the Board will take jurisdiction over this issue as inextricably intertwined with the issue of TDIU.

The appeal is REMANDED to the RO via the AMC, in Washington, DC.  VA will notify the Veteran if further action is required.


REMAND

As noted in the introduction, the Veteran has filed a claim for an increased rating for diabetes mellitus, currently evaluated at 20 percent.  Although the Veteran's Virtual VA file shows that the Agency of Original Jurisdiction (AOJ) has been processing the claim, including having afforded the Veteran a VA examination, the AOJ has yet to adjudicate the claim.  As the outcome of that claim could affect the claim for a total disability rating based upon individual unemployability (TDIU) on appeal, the Board finds that the claims are inextricably intertwined and a Board decision on the TDIU claim at this time would be premature.  See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180 (1991).

The Board notes that the Veteran continues to receive treatment at the Louisville VA Medical Center (VAMC), including the Clarkson (Grayson County) Community Based Outpatient Center (CBOC).  The record, including his Virtual VA file, contains treatment notes dated through January 2013.  Thus, the RO/AMC should obtain any outstanding treatment notes since that time.

Accordingly, the case is REMANDED for the following actions:

1.  Adjudicate the claim of entitlement to a disability rating in excess of 20 percent for diabetes mellitus, providing the Veteran with notice of his appellate rights.  

Upon receipt of a timely notice of disagreement, if any, furnish the Veteran a statement of the case.  If the Veteran files a timely substantive appeal, certify the issue for appellate review. 

2.  Obtain all outstanding records of treatment from the Louisville VAMC, including the Grayson County CBOC, since January 2013.  

3.  After completing the above, readjudicate the claim for a TDIU, with consideration of all the evidence added to the claims file since the issuance of the December 2011 SSOC.  If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with an SSOC and given an opportunity to respond.

The appellant has the right to submit additional evidence and argument on the matter or 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 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 Supp. 2012).



_________________________________________________
JONATHAN B. KRAMER
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) (2012).