Citation Nr: 1333901 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 06-05 192 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU) for accrued benefits purposes. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD B. Berry, Counsel INTRODUCTION The Veteran served on active duty from August 1952 to July 1953. He died in January 2004. The appellant is the Veteran's surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. As noted in the April 2010 and August 2012 Board decisions, three issues have been raised by the record, but have not been fully adjudicated by the RO. First, in March 2002, the Veteran filed a petition to reopen his service connection claim (originally decided but unappealed in March 1998) for a staph infection. Second, in a February 2003 rating decision, the RO denied the Veteran's claim for special monthly compensation based on the need for regular aid and attendance. The Veteran did not file a NOD with regard to that decision. Nevertheless, that claim is still considered pending as the Veteran died within one year of the February 2003 rating decision. See 38 C.F.R. § 3.160 (2013). Finally, in September 2005, the appellant expressed a desire to reopen her claim for DIC benefits under 38 U.S.C.A. § 1318. The RO was instructed to address these issues; however, it appears that the RO has not taken action. Thus, the Board does not have jurisdiction over them. Accordingly, the claims of service connection for staph infection, entitlement to special monthly compensation based on the need for regular aid and attendance, and DIC benefits under 38 U.S.C.A. § 1318 are again referred to the RO for appropriate action. 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 The Board observes that the issues of entitlement to service connection for nicotine dependence and chronic obstructive pulmonary disease (COPD) were granted in an April 2010 Board decision. The issue of entitlement to a TDIU was remanded to the RO/AMC for additional consideration as the Board determined that it was inexplicably intertwined with the service connection claims that were granted. A May 2013 supplemental statement of the case indicates that based on the April 2010 Board decision the RO assigned an evaluation of 100 percent, effective September 13, 1993, the date the Veteran originally filed a claim for COPD. After a careful review of the record to include any virtual records, the Board is unable to locate the rating decision that assigned the disability ratings and effective dates for the grant of service connection for nicotine dependence and COPD. This information is necessary in order for the Board to properly adjudicate the appellant's TDIU claim for accrued benefits purposes on a de novo basis. Accordingly, the case is REMANDED for the following action: 1. Obtain a copy of the rating decision that assigned a disability rating and effective date for the grant of service connection for nicotine dependence and COPD and associate it with the claims file. 2. Upon completion of the foregoing, readjudicate the appellants claim for entitlement to a TDIU for accrued benefits purposes based on a review of the entire evidentiary record. If the benefit sought on appeal remains denied, provide the appellant and her representative with a supplemental statement of the case and the opportunity to respond thereto. Thereafter, subject to current appellate procedure, the case should be returned to the Board for further consideration, if in order. 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. 2013). _________________________________________________ ROBERT E. SULLIVAN 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) (2013).