Citation Nr: 1524827 Decision Date: 06/10/15 Archive Date: 06/19/15 DOCKET NO. 13-03 688A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an effective date earlier than December 5, 2011 for the award of service connection for coronary artery disease (CAD), including the preliminary issue of whether the Veteran filed a timely appeal of this claim. 2. Entitlement to an effective date earlier than October 14, 2013 for the award of a 100 percent schedular disability rating for the CAD. 3. Entitlement to a total disability rating due to individual employability resulting from service-connected disability (TDIU) for the immediately preceding period from May 5, 2012 to October 13, 2013. REPRESENTATION Appellant represented by: Chris Attig, Attorney ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from October 1965 to October 1970. This appeal to the Board of Veterans' Appeals (Board/BVA) is from April 2012 and January 2014 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The claims require further development before being decided on appeal, partly owing to an outstanding hearing request, so the Board is REMANDING them to the Agency of Original Jurisdiction (AOJ). REMAND In January 2015 correspondence, the Veteran's attorney requested a hearing before the Board concerning the claim for an earlier effective date for the award of service connection for the CAD. He also contended the Veteran had filed a timely appeal of this claim to the Board, and that it resultantly was inappropriate for the RO to have administratively (and unilaterally) terminated the appeal of this claim, especially since it, too, is an appealable issue. The Veteran has not been provided this requested hearing and must be before deciding this claim. 38 C.F.R. §§ 20.700, 20.703 (2014). Also in that January 2015 correspondence, the Veteran's attorney requested immediate certification of the appeal to the Board so that a Motion to Advance on the Board's docket could be filed. He indicated the Veteran was over the age of 70. The Veteran's attorney also submitted a Notice of Disagreement (NOD) the following month, so in February 2015, concerning the remaining claims of entitlement to an earlier effective date for the eventual assignment of a 100 percent schedular rating for the CAD and for a TDIU, including for the immediately preceding period when the Veteran did not have a 100 percent schedular rating. When filing that NOD, the attorney again cited the Veteran's age (over 70 years old) and consequent need for expedited consideration of his claims or, if they continued to be denied, provision of a Statement of the Case (SOC) so they in turn would have opportunity to immediately file a Substantive Appeal (VA Form 9 or equivalent statement) to complete the steps necessary to perfect the appeal of these other claims to the Board. See 38 C.F.R. § 20.200 (2014). The RO since has sent the Veteran and his attorney a letter in April 2015 confirming the appeal was certified to the Board, and the Board in turn also even more recently, in May 2015, provided the Veteran and his attorney an additional letter confirming receipt of the claims file and appeal at the Board. The letter from the Board also indicated that a motion to advance the appeal on the docket could be filed and cited examples of what would justify a favorable ruling, including advanced age of 75 years or more. In light of this prompt remand, the motion to advance this appeal on the docket (even if accepted as filed) is moot, so the Board need not rule on it. The 100 percent schedular rating eventually awarded for the Veteran's CAD in the January 2014 rating decision was only made retroactively effective from October 14, 2013, and as mentioned in response the Veteran filed a timely NOD in January 2015 contending an earlier effective date was warranted for this rating. That January 2015 NOD also expressed disagreement with the AOJ's failure to explicitly adjudicate and grant a TDIU in the January 2014 rating decision, including for the immediately preceding period when the Veteran did not have this 100 percent schedular rating. The Veteran has not been provided an SOC concerning these other claims, however, in response to his disagreement with their disposition. According to an April 2015 VA memorandum in the file, the NOD concerning these claims "will be worked in order of pending appeals." So the RO apparently already has accepted this NOD as timely filed, to initiate an appeal to the Board of these others claims. Nevertheless, in the meantime, the appropriate disposition in this circumstance is to remand, rather than merely refer, these claims to the AOJ for issuance of the required SOC. See Manlicon v. West, 12 Vet. App. 238 (1999). The Veteran also will then, in response, have opportunity to complete the steps necessary to perfect his appeal of these additional claims by also filing a timely Substantive Appeal to the Board concerning them (on a VA Form 9 or equivalent statement). Accordingly, all of the claims are REMANDED for the following additional development and consideration: 1. Schedule the Veteran for a hearing before a Veterans Law Judge of the Board. Once he elects the specific type of hearing he wants (videoconference or Travel Board), notify him and his attorney of the date, time, and location of the hearing. Put a copy of this notification letter in the claims file. 2. Send the Veteran appropriate notice regarding his derivative claim of entitlement to a TDIU, including during the period immediately preceding his receipt of a 100 percent schedular rating for his CAD. Also request that he complete and submit a formal TDIU application (VA Form 21-8940). 3. As well, provide the Veteran and his attorney an SOC concerning the claims of entitlement to an effective date earlier than October 14, 2013 for the award of the 100 percent schedular rating for the CAD and for a TDIU. Reiterate that, in response to this SOC, they still need to also file a timely Substantive Appeal (VA Form 9 or equivalent statement) to complete the steps necessary to perfect the appeal of these other claims to the Board. 38 C.F.R. § 20.200. All claims concerning which an appeal has been perfected should be returned to the Board for further appellate consideration, if they continue to be denied or are not granted to the Veteran's satisfaction. The Veteran has the right to submit additional evidence and argument concerning these claims the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims remanded by the Board 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 2014). _________________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board 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) (2014).