Citation Nr: 1736491	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  10-02 042	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1.  Entitlement to service connection for a back disability.

2.  Entitlement to a total disability rating based on individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

R. Connally, Associate Counsel


INTRODUCTION

The Veteran, who is the appellant in this case, had service from December 1977 to December 1981.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.

The Board previously considered this appeal in October 2015, and remanded these issues for further development.  After the development was completed, the case returned to the Board for further appellate review.  In July 2016 the Board determined an advisory expert medical opinion was required from a Veteran's Health Administration (VHA) orthopedic spine surgeon to assist in the adjudication of this matter. See 38 C.F.R. § 20.901. The orthopedic spine surgeon's opinion was received in September 2016.

The issue of entitlement to service connection for a psychiatric disability has been raised by the record in October 2016 and February 2017 statements, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2016). 

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


REMAND

Unfortunately, the Veteran's appeal must be remanded for further development.  Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's appeal so that he is afforded every possible consideration.

In response to the February 2017 notification letter respecting the obtained VHA medical opinion, the Veteran submitted additional evidence and argument in February 2017.  With that response, the Veteran indicated that he did not wish to waive AOJ jurisdiction and wished the Board to remand his claim.  In light of the submission of additional argument without a waiver, the Board must remand this case to the AOJ in order to consider this evidence in the first instance.

Accordingly, the case is REMANDED for the following action:

The AOJ should review the claims file and the evidence received since the last supplemental statement of the case and readjudicate the Veteran's claims of service connection for a back disability and TDIU.  In so doing, undertake any additional development deemed necessary in view of the expanded record.  If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board.

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 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).


_________________________________________________
H. SEESEL
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).