Citation Nr: 1751603	
Decision Date: 11/09/17    Archive Date: 11/17/17

DOCKET NO.  09-04 191	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUE

Entitlement to a total disability rating based on individual unemployability due to service connected disorders.


REPRESENTATION

Appellant represented by:	Georgia Department of Veterans Services


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

E. Ko, Associate Counsel


INTRODUCTION

The Veteran had active service from May 1965 to May 1969. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia.  The Board remanded this case in January 2013 and February 2017 for further development.

The Veteran testified at a hearing in September 2012 before the undersigned.  A transcript of the hearing is of record.  

In its February 2017 decision, the Board remanded the issues of entitlement to service connection for sleep apnea and entitlement to a total disability rating based on individual unemployability due to service connected disorders.  In an August 2017 rating decision VA granted entitlement to service connection for sleep apnea and assigned a 50 percent disability rating effective March 24, 2006.  As the Veteran has not indicated any disagreement with the August 2017 rating decision, the issue is no longer before the Board at this time.

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.


REMAND

The RO's development of the claim does not substantially comply with the Board's February 2017 remand directives.  The Board directed the RO to complete the development noted in the introduction section of the February 2017 decision before readjudicating the claim of entitlement to a total disability rating based on individual unemployability due to service connected disorders.  In the introduction, the Board noted that the issue of entitlement to increased ratings for bilateral lower extremity peripheral neuropathy, which was referred in the January 2013 Board remand, had not been adjudicated.  Accordingly, the Board referred the issue again for appropriate action in its February 2017 decision.

The record shows that the RO denied entitlement to a total disability rating based on individual unemployability due to service connected disorders in an August 2017 supplemental statement of the case even though it had not yet adjudicated the issue of entitlement to increased ratings for bilateral lower extremity peripheral neuropathy.  Hence, further development is required.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).

Accordingly, the case is REMANDED for the following action:

After first adjudicating the issue of entitlement to increased ratings for bilateral lower extremity peripheral neuropathy and completing any additional development deemed necessary, readjudicate the issue of entitlement to a total disability rating based on individual unemployability due to service connected disorders.  If the benefit sought is not granted, the Veteran and his representative must be furnished a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review.  The Veteran is advised that the Board cannot exercise jurisdiction over the claim for an increased rating for bilateral lower extremity peripheral neuropathy in the absence of a timely perfected appeal.

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. §§ 5109B, 7112 (2012).



_________________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C. § 7252 (2012), 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) (2017).