Citation Nr: 1316677	
Decision Date: 05/21/13    Archive Date: 05/29/13

DOCKET NO.  09-35 515	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to an increased rating in excess of 10 percent for left knee degenerative joint disease.  

2.  Entitlement to a total disability rating based on individual unemployability (TDIU).


REPRESENTATION

Veteran represented by:	Lisa A. Lee, Attorney at Law


ATTORNEY FOR THE BOARD

Megan C. Kral, Associate Counsel  

INTRODUCTION

The Veteran had active duty service from September 1950 to February 1952. 

This claim comes before the Board of Veterans' Appeals (Board) on appeal of an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida.  This case was previously before the Board in May 2010, January 2011, September 2011, and April 2012.  

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).

The appeal is REMANDED to the Department of Veterans Affairs Regional Office.  VA will notify the Veteran if further action is required.


REMAND

In September 2011, the Board granted the claim of entitlement to service connection for a left knee disorder, to include as secondary to a service-connected right leg and/or knee disability.  In January 2012, the RO assigned a 10 percent disability rating effective November 2007.  A notice of disagreement (NOD) was filed in March 2012.  A submission of a timely NOD triggers the appeal process, and requires issuance of a statement of the case (SOC).  The RO has not issued a SOC in response to that NOD.  Under these circumstances, the Board is required to remand these matters for issuance of a SOC.  See Manlicon v. West, 12 Vet. App. 238 (2004).  These matters are not before the Board at this time, and will only be before the Board if the Veteran timely files a substantive appeal after the SOC is issued.  Id., at 240-41.

The Board finds that the TDIU claim is inextricably intertwined with the increased rating claim, and therefore, consideration of that matter must be deferred pending resolution of such claim.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together).

Accordingly, the case is 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) (2012).  Expedited handling is requested.)

1. The RO must issue a SOC addressing the matter of entitlement to an increased rating for left knee degenerative joint disease.  The Veteran should be advised that he must file a timely substantive appeal in order to perfect an appeal of these issues to the Board.  If such occurs, the claims should be certified to the Board for appellate review.

2. Following completion of the above, the RO should also fully develop and readjudicate the Veteran's claim seeking a TDIU rating, in light of the determination on the increased rating claim for left knee degenerative joint disease.  If either claim remains denied, the RO should issue an appropriate SSOC and afford the Veteran and his representative the opportunity to respond.  The case should then be returned to the Board, if in order, for further review.

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).


This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board 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).



_________________________________________________
MICHAEL MARTIN
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).