Citation Nr: 1317295	
Decision Date: 05/28/13    Archive Date: 06/06/13

DOCKET NO.  10-32 333	)	DATE
	)
	)


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


THE ISSUE

Entitlement to attorney fees based upon benefits granted in a March 29, 2010, rating decision.

(The intertwined issue of entitlement to an earlier effective date for the award of a total disability rating based upon individual unemployability due to service-connected disabilities is addressed in a separate decision.)


ATTORNEY FOR THE BOARD

T. L. Douglas, Counsel



INTRODUCTION

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 decision by the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA).  

As a grant of benefits to the appellant would result in a denial of benefits to the Veteran, this case qualifies as a "contested claim."  See 38 C.F.R. § 20.3(p) (2012) (defining simultaneously contested claim).  Contested claims are subject to special procedural regulations as set forth in 38 C.F.R. §§ 19.100-19.102 (2012).  See also 38 C.F.R. §§ 20.500-20.504, 20.713 (2012).  

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

Under the applicable criteria, all interested parties in a contested claim must be specifically notified of the action taken by the agency of original jurisdiction (AOJ), and the unsuccessful claimant must be notified of the right and time limit for initiating an appeal, as well as hearing and representation rights.  See 38 C.F.R. § 19.100 (2012).  The requisite notice was provided in this case.

A review of the available record also reveals that in correspondence dated in June 2010 the appellant, as the Veteran's attorney, expressed disagreement with the assigned effective date in the March 29, 2010, rating decision for the award of a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU).  This matter has not been addressed in a statement of the case and have been remanded for appropriate action in a decision under a separate docket number.  See Manlincon v. West, 12 Vet. App. 238 (1999).  

The Board also finds that the earlier effective date issue is inextricably intertwined with the attorney fee issue on appeal.  Where a decision on one issue could have a "significant impact" upon another, the two claims are inextricably intertwined.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991), overruled on other grounds by Tyrues v. Shinseki, 23 Vet. App. 166 (2009) (en banc), aff'd, 631 F.3d 1380, 1383 (Fed.Cir.2011), vacated and remanded for reconsideration, --- U.S. ---, 132 S.Ct. 75, 181 L.Ed.2d 2 (2011), modified, 26 Vet. App. 31 (2012).

Accordingly, the case is REMANDED for the following action:

Following completion of appropriate action on the intertwined issue associated with this contested claim, the issue of entitlement to attorney fees based upon benefits granted in a March 29, 2010, rating decision should be re-adjudicated with appropriate consideration of all the evidence of record.

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).



_________________________________________________
F. JUDGE FLOWERS
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).