Citation Nr: 1706446 Decision Date: 03/02/17 Archive Date: 03/16/17 DOCKET NO. 07-03 431 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for diabetes mellitus. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Veteran represented by: Paul B. Burkhalter, Esq. WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD K. Kovarovic, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1979 to January 1999. These matters come before the Board of Veterans' Appeals (Board) from July 2006 and April 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied the Veteran's claims for entitlement to an increased disability rating for diabetes mellitus and a TDIU, respectively. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran is seeking entitlement to an increased disability rating for diabetes mellitus and to a TDIU. Although the Board sincerely regrets the additional delay this may cause, further development is necessary prior to adjudication of these claims. Increased Rating Claim As mentioned above, this claim was most recently remanded by the Board in December 2016. At that time and in pertinent part, the RO was instructed to obtain the Veteran's Social Security Administration (SSA) records pertaining to his claim for disability benefits. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). Thereafter, the RO was to readjudicate the claim and return to the Board as warranted. A claimant has the right to substantial compliance with remand directives. Stegall v. West, 11 Vet. App. 268 (1998)(holding that a remand by the United States Court of Appeals for Veterans Claims Court (Court) or the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders); see also D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required). Here, review of the claims file does not indicate that the RO has undertaken any efforts to secure the Veteran's SSA records to date. As such, remand is now warranted such that the Veteran's SSA records may be obtained. TDIU Claim The Board now turns to the Veteran's TDIU claim. Typically, a veteran has the right to request a hearing before the issuance of a Board decision. Bernard v. Brown, 4 Vet. App. 384, 393 (1993); 38 C.F.R. § 20.703 (2016). In such a case, the Board may not proceed with review of the claim on appeal without first providing the veteran an opportunity for the requested hearing. Here, it appears that there has been significant administrative confusion regarding the Veteran's hearing request. On his Substantive Appeal (VA Form 9) dated January 2014, the Veteran requested the opportunity to testify regarding this claim during a videoconference hearing. Said hearing was originally scheduled for July 2016. However, the Veteran's representative was unavailable on that date, and the hearing was rescheduled for December 2016. The hearing was subsequently rescheduled for January 2017. However, in the interim, a Board remand was issued in December 2016. In said remand, the Veteran was classified as a no-show for his July 2016 hearing date, such that his hearing request was deemed withdrawn. See 38 C.F.R. § 20.704(d) (2016). Review of the Veteran's claims file indicates that any communication relating to the rescheduling of the requested hearing was not available for the Board's review at the time of December 2016 remand. However, thorough assessment of the claims file indicates that the Veteran has not withdrawn his hearing request at any time. As such, considerations of due process mandate that the Board may not proceed with further review of this claim without first providing the Veteran an opportunity for the requested hearing. Therefore, remand is required to schedule the Veteran for a videoconference hearing so that he may provide evidence in support of his claim for entitlement to a TDIU. See 38 U.S.C.A. § 7107(b) (West 2014); 38 C.F.R. § 20.700(a) (2016). The Board notes that any confusion arising from the Veteran's hearing request relates only to his claim for entitlement to a TDIU, as the Veteran previously testified regarding his diabetes mellitus claim during a travel board hearing in June 2010. Accordingly, the case is REMANDED for the following actions: 1. Obtain from the SSA all records associated with the Veteran's claim for Social Security disability benefits. All actions to obtain the requested records should be fully documented in the record. If they cannot be located or no such records exist, the Veteran and his attorney should be so notified in writing. 2. After completing action 1, readjudicate the claim for an increased rating for diabetes mellitus. If the benefit remains denied, issue a Supplemental Statement of the Case to the Veteran and his attorney and provide an appropriate period for response. Thereafter, return the appeal to the Board as warranted. 3. With regard to the Veteran's TDIU claim, schedule the Veteran for a videoconference hearing in accordance with the procedures set forth at 38 C.F.R. §§ 20.700(a), 20.704(a) (2016). The Veteran 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 2014). _________________________________________________ LANA K. JENG Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2016).