Citation Nr: 1332945 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 10-15 726 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to a rating in excess of 40 percent for service-connected diabetes mellitus, type II. 2. Entitlement to a total rating based upon individual unemployability (TDIU) due to service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from October 1972 to March 1975 and from January 1980 to September 1999. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The Board observes that this decision, in pertinent part, confirmed and continued a 20 percent rating for the service-connected diabetes mellitus. However, an April 2010 decision review officer (DRO) decision assigned an increased rating of 40 percent for this disability, effective August 3, 2009. Nevertheless, this claim remains in appellate status pursuant to the holding of AB v. Brown, 6 Vet. App. 35 (1993). Further, nothing in the record reflects the Veteran expressed disagreement with the effective date of this 40 percent rating. For the reasons detailed below, 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 With respect to the TDIU claim, the Board observes that the Veteran was sent notification of the November 2009 rating decision via correspondence dated November 10, 2009. In his initial November 2009 Notice of Disagreement (NOD) the Veteran indicated he was unable to work. Further, in a subsequent statement the Veteran again challenged the TDIU determination. As such, the record reflects he submitted a timely NOD regarding that claim. See 38 C.F.R. § 20.302. However, a review of the record, to include the paperless, electronic records on the Virtual VA system, does not reflect a Statement of the Case (SOC) has been promulgated on this issue or that TDIU has otherwise been established. In Manlincon v. West, 12 Vet. App. 238 (1999), the United States Court of Appeals for Veterans Claims (Court) held that in circumstances where a NOD is filed, but a SOC has not been issued, the Board must remand the claim to direct that a SOC be issued. (Emphasis added). Therefore, a remand is required in order to ensure such an SOC is promulgated on this issue. In regard to the diabetes mellitus claim, the Board observes that the Veteran requested a hearing before a Veterans Law Judge (VLJ) of the Board as part of his April 2010 Substantive Appeal on this issue. Further, the record reflects that a videoconference hearing before a VLJ was scheduled for November 2010, but it is indicated that the Veteran failed to appear for that hearing. Under the law, a claimant's hearing request will be deemed withdrawn if he or she fails to appear for a scheduled hearing without good cause or without requesting and receiving a postponement of that hearing. See 38 C.F.R. §§ 20.702(d), 20.704(d). In this case, however, a Report of General Information dated the same day as the scheduled hearing reflects that Veteran reported he missed the hearing due to a death in the family, and that he requested the hearing be rescheduled. In view of the foregoing, the Board finds that good cause has been shown for the Veteran's failure to appear at the scheduled November 2010 hearing, and that he should be scheduled for a new hearing. Therefore, a remand is also required to schedule him for such a hearing. See 38 C.F.R. §§ 20.700, 20.704. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should provide the Veteran with a Statement of the Case as to the issue of entitlement to a total rating based upon individual unemployability due to service-connected disability, and advise him of the time period in which to perfect an appeal as to this issue. 2. The AMC/RO should take appropriate steps in order to schedule the Veteran for a hearing with a Veterans Law Judge of the Board in accordance with his request. The Veteran should be notified in writing of the date, time and location of the hearing. After the hearing is conducted, or if the Veteran withdraws the hearing request or fails to report for the scheduled hearing, the claims file should be returned to the Board, in accordance with appellate procedures. By this remand, the Board intimates no opinion, either legal or factual, as to any final determination warranted in this case. The purpose of this remand is to afford the Veteran due process of law. 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). _________________________________________________ STEVEN D. REISS 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).