Citation Nr: 1313034 Decision Date: 04/18/13 Archive Date: 05/02/13 DOCKET NO. 07-23 684 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to a total rating based on individual employability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD James G. Reinhart, Counsel INTRODUCTION The Veteran served on active duty from October 1965 to October 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In May 2012, the Board remanded this issue to the agency of original jurisdiction (AOJ) so that a hearing before a Veterans Law Judge (VLJ) could be scheduled at the RO. However, in October 2012, the Veteran provided a written withdrawal of his hearing request. The Board thus finds that the Veteran's hearing request has been withdrawn. 38 C.F.R. § 20.704(e) (2011). In December 2102, the Board again remanded this issue to the AOJ for additional development. There has not been substantial compliance with one of the Board's directives and therefore another remand is necessary. The appeal is REMANDED to the RO via the Appeals Management Center in Washington, D.C. REMAND A remand is necessary because there has not been substantial compliance with the Board's December 2012 Remand directive to adjudicate claims that the Board determined were inextricably intertwined with the issue of entitlement to TDIU. A remand by the Board confers on the veteran the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998). Compliance need not be absolute, but substantial compliance is required. Dyment v. West, 13 Vet. App. 141 (1999). In the December 2012 Remand, the Board explained that claims of entitlement to service connection for diabetes mellitus and an increased rating for the service-connected residuals of a right tibia fracture, and a claim to reopen a previously denied issue of entitlement to service connection for peripheral neuropathy of the lower extremities, had been raised by the record and were inextricably intertwined with the Veteran's TDIU claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). The Board explained that a decision on those claims could impact the TDIU claim and therefore the TDIU claim had to be held in abeyance until those claims were adjudicated. The Board directed the AOJ to adjudicate the identified claims raised by the record and stated that the Veteran should be notified of his appellate rights. Instead of issuing a separate decision as to the identified claims raised by the record, the AOJ addressed the claims in the Supplemental Statement of the Case issued in March 2003. VA regulation specifically states that a supplemental statement of the case shall not be used to announce decisions by the agency of original jurisdiction on issues not previously addressed. Significantly, the Veteran was not provided with proper notice of his appellate rights as to those issues. Statutes specify the requirements for decisions and statements of the case and regulation specifies the purpose of supplemental statements of the case. Decisions, statements of the case, and supplemental statements of the case are distinct legal documents and are not interchangeable. VA shall decide all questions of law and fact necessary to a decision under a law that affects the provision of benefits by VA to veterans. 38 U.S.C.A. § 511(West 2002). In the case of a decision, VA shall, on a timely basis, provide to the claimant, and to the claimant's representative, notice of the decision. That notice shall include an explanation of the procedure for obtaining review of the decision. 38 U.S.C.A. § 5104(a) (West 2002). Where the claimant or representative within the specified statutory time period, files a notice of disagreement with the decision of an AOJ, the AOJ shall take such developmental such agency will take such development or review action as it deems proper. 38 U.S.C.A. § 7105(d)(1) (West 2002). Except in the case of simultaneously contested claims, the claimant has one year from the mailing of notice of the decision to file a notice of disagreement. 38 U.S.C.A. § 7105(b) (West 2002). None of the claims identified by the Board in the December 2012 Remand are simultaneously contested claims. After the issuance of a statement of the case, the appellant will be afforded a period of sixty days from the date the statement of the case is mailed to file the formal appeal. 38 U.S.C.A. § 7105(d)(1) (West 2002). A supplemental statement of the case is a document prepared by the AOJ to inform the appellant of any material changes in, or additions to, the information included in the statement of the case or any prior supplemental statement of the case. In no case will a supplemental statement of the case be used to announce decisions by the agency of original jurisdiction on issues not previously addressed in the statement of the case. 38 C.F.R. § 19.31(a) (2012). It is clear from those provisions that decisions, statements of the case, and supplemental statements of the case are different documents, serve different purposes, are issued in response to different actions, and are procedurally distinct. In the December 2012 Remand, the Board determined that claims had been raised by the record and directed that the AOJ adjudicate the claims. A decision is the proper document to announce an initial adjudication of a claim, including a claim to reopen a previously denied claim. Here, the RO announced first announced adjudication of those claims in the March 2013 supplemental statement of the case. Moreover, the Veteran was not afforded due process because the AOJ provided the Veteran with an incorrect statement of his procedural and appellate rights. The only notice it provided him and his representative as to contesting an issue listed in the March 2013 Supplemental Statement of the Case was that he had thirty days to respond to the letter and that he could write to the AOJ and tell the AOJ what he disagreed with in the March 2013 supplemental statement of the case, and why. Statute provides for a period of one year, not sixty days, to initiate an appeal to the Board of an AOJ decision. Implicit in the Board's December 2012 Remand directive was that the adjudication of the identified claims must comply with statute and regulation. As it did not, there has not been substantial compliance with the December 2012 Remand. Hence, another remand is necessary. Stegall v. West, 11 Vet. App. 268 (1998) Accordingly, the case is REMANDED for the following action: 1. After providing any required notice and assistance with development, issue a decision adjudicating claims of entitlement to service connection for diabetes mellitus; entitlement to an increased rating for the service-connected residuals of a right tibia fracture with tendonitis and arthritis of the right ankle, tendonitis and arthritis of the right knee, and plantar fasciitis with tendonitis of the tibialis anterior portion of the right foot; and whether new and material evidence has been received sufficient to reopen a previously denied claim for service connection for peripheral neuropathy of the lower extremities. Provide the Veteran and his representative notice of his procedural and appellate rights. 2. Then readjudicate the claim for TDIU. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the claim to the Board. 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ Harvey P. Roberts 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).