Citation Nr: 1736232	
Decision Date: 08/30/17    Archive Date: 09/06/17

DOCKET NO.  08-26 818	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUE

Entitlement to a total disability for individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

C. Lamb, Associate Counsel


INTRODUCTION

The Veteran served on active duty from September 1969 to August 1971.  

This matter is before the Board of Veterans' Appeals (Board) on appeal from March 2007 and December 2009 rating decisions of the Montgomery, Alabama, Department of Veterans Affairs (VA) Regional Office (RO).  

The Veteran's appeal stems from two separate appeal streams.  The first appeal stems from the Veteran's claim for entitlement to a TDIU which originated in a September 2008 VA Form 9, substantive appeal, in which the Veteran asserted that his service-connected low back disability prevented him from working at all.  That claim was denied in a December 2009 rating decision.  The second appeal stems from the neurological impairment due to the low back disability and entitlement to a TDIU that was Board's August 2014 decision which granted an increased rating for low back disability and remanded the issues of entitlement to a separate evaluation for part and parcel to the original increased rating claim.  

The Board notes that in August 2010, the Veteran testified at a Travel Board hearing before the undersigned.  The Travel Board hearing discussed the issue of entitlement to a higher initial rating for low back disability.  A copy of the transcript of that hearing has been associated with the claims file.  

The Board further notes that during the pendency of the appeal, a March 2017 rating decision granted service connection for bilateral lower extremity radiculopathy.  Therefore, as the RO granted the benefit sought on appeal, that issue is no longer before the Board.  Shoen v. Brown, 6 Vet. App. 456 (1994).  Thus, the only issue currently before the Board is entitlement to a TDIU.

The appeal is REMANDED to the AOJ.  VA will notify the appellant if further action is required.



REMAND

As noted above, the Veteran's claim for TDIU was denied in a December 2009 rating decision.  The Veteran filed a timely Notice of Disagreement in December 2010.  Following issuance of a July 2012 Statement of the Case, the Veteran filed a timely VA Form 9, substantive appeal, in September 2012.  The September 2012 VA Form 9 shows the Veteran requested a Travel Board hearing.  Additionally, an August 2016 VA Form 8 certifying the issue of entitlement to a TDIU to the Board indicates that a hearing was requested and that a Travel Board hearing was pending.  Further, in May 2017 the Veteran was notified that he was placed on a list of persons wanting to appear for a Travel Board hearing.  

An appellant is entitled to a hearing before the Board on request.  38 C.F.R. § 20.700 (2016).  Thus, a remand is required to schedule the Travel Board hearing request for the appellant.  38 C.F.R. §§ 20.700(e), 20.703, 20.704 (2016).

As such, the case must be remanded to the RO to schedule a Travel Board hearing.  See 38 C.F.R. §§ 20.700, 20.704 (2016).


Accordingly, the case is REMANDED for the following action:


Schedule the Veteran for a Travel Board hearing in accordance with the September 2012 request, as to the matter of entitlement to a TDIU.


The appellant has the right to submit additional evidence and argument on the matter 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).



_________________________________________________
Thomas H. O'Shay
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).