Citation Nr: 1335195	
Decision Date: 11/01/13    Archive Date: 11/13/13

DOCKET NO.  09-46 954A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1.  Whether new and material evidence has been submitted to reopen a claim for service connection for hypertension (HTN), to include as secondary to a service-connected disability.

2.  Entitlement to a disability rating in excess of 40 percent for intervertebral disc syndrome (IVDS).  

3.  Entitlement to a total disability rating for compensation based on individual unemployability (TDIU).  


REPRESENTATION

Appellant represented by:	Robert W. Gillikin II, Attorney At Law


ATTORNEY FOR THE BOARD

L. J. Wells-Green, Counsel


INTRODUCTION

The Veteran served on active duty from April 1960 to August 1961.  He died in June 2010.  The appellant is his surviving spouse.  

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which denied the reopening of the claim for service connection for HTN; denied entitlement to an increased disability rating for a low back disability; and denied entitlement to TDIU.  

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


REMAND

In July 2010, the appellant filed a request to be substituted as the appellant in the Veteran's pending appeal.  See 38 U.S.C.A. § 5121A (West 2012).  

Although VA notified the appellant that she was a valid claimant and had been substituted in the Veteran's appeal in an October 2010 letter, she was not advised that the record remained open for the submission and development of any pertinent, additional evidence; nor was she provided the opportunity to submit further evidence or notify VA of such evidence.  

The Veteran requested a videoconference Board hearing in his VA Form 9, received in December 2009.  Although the October 2010 VA letter requested the appellant provide written notice of whether she still desired the hearing and her attorney, in a later May 2013 email, "waived" the hearing, it is unclear whether the appellant consented to such.  38 C.F.R. § 20.704(e) (2012).  Clarification regarding her wishes must be obtained.  

Accordingly, the case is REMANDED for the following action:

1.  Provide the appellant notice of the laws, regulations, and evidence necessary to substantiate her claims to reopen the previously denied service connection claim for HTN, and for entitlement to an increased disability rating for a lumbosacral back disability and for TDIU.  

2.  Obtain confirmation from the appellant that she does not desire a Board hearing.  If she does, schedule such and, upon completion, return the case to the Board.  

3.  If the appellant does not desire a Board hearing,  undertake any additional development deemed necessary and readjudicate the appeal.  

4.  If any of the benefits sought remain denied, issue a Supplemental Statement of the Case and return the case to the Board.  

The appellant 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 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).



_________________________________________________
RONALD W. SCHOLZ
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).