Citation Nr: 1342270	
Decision Date: 12/20/13    Archive Date: 12/31/13

DOCKET NO.  08-04 608	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi


THE ISSUE

Entitlement to an initial rating in excess of 10 percent for a right ankle disability.  


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

L. A. Rein, Counsel



INTRODUCTION

The Veteran served on active duty from August 1976 to August 1979.

This matter comes before the Board of Veterans' Appeals (Board) from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which granted service connection for residuals of an old healed fracture of the lateral malleolus of the right ankle and assigned a 10 percent disability rating.

In January 2012, the Board remanded this matter for additional development. 

The issue of entitlement to service connection for bilateral pes planus as secondary to a service-connected right ankle disability has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over that issue, and it is, AGAIN, referred to the AOJ 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

Although further delay is regrettable, the Board finds that additional development is necessary prior to appellate review.

A remand by the Board confers on a Veteran the right to substantial compliance with the remand orders.  If the Board proceeds with final disposition of an appeal, and the remand orders have not been satisfied, the Board itself errs in failing to ensure compliance.  Stegall v. West, 11 Vet. App. 268 (1998). 

In the January 2012 remand, the Board instructed the RO/AMC that after completion of all development to readjudicate the claim and specifically consider the provisions of 38 C.F.R. § 3.321(b).  In February 2012, the AMC issued a supplemental statement of the case that continued the denial of the claim on a schedular basis, but failed to address the provisions of 38 C.F.R. § 3.321(b).  Thus, the Board finds that there has not been substantial compliance with its January 2012 remand.  See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D'aries v. Peake, 22 Vet. App. 97 (105) (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999).  Accordingly, the claim must be remanded.  

Accordingly, the case is REMANDED for the following action:

Readjudicate the claim with specific citation to and consideration of 38 C.F.R. § 3.321(b).  If the decision is adverse to the appellant, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the claim to the Board

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).



_________________________________________________
JONATHAN B. KRAMER
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).