Citation Nr: 1751917	
Decision Date: 11/14/17    Archive Date: 11/22/17

DOCKET NO.  14-06 202	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California


THE ISSUE

Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability.  


REPRESENTATION

Appellant (Veteran) represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

Christopher McEntee, Counsel

INTRODUCTION

The Veteran served on active duty from June 1970 to December 1971.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California.  In May 2015, the Veteran testified in a personal hearing convened at the RO, for which a transcript has been included in the record.  

In his January 2014 substantive appeal, the Veteran also requested a hearing before the Board.  In April 2017, the RO notified the Veteran that a Board hearing had been scheduled for him on May 10, 2017, commencing at 9:30 AM.  The record indicates that the Veteran did not appear for the hearing, or provide notice to the RO that he would not be attending.  Later, on the afternoon of May 10, 2017, the Veteran contacted the RO and requested that his hearing be rescheduled.  He did not explain why he missed the scheduled hearing, or why he needed a rescheduled hearing.  As such, in the absence of a showing of good cause, the Board must deny the Veteran's request at this time.  38 C.F.R. § 20.704.    

In any event, the appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the Veteran if further action is required.


REMAND

The Veteran maintains that service-connected heart and back disability cause him to be unemployable and entitled to a TDIU.  In the January 2014 Statement of the Case (SOC) addressing the TDIU claim, the RO considered the Veteran's heart disability.  At that time the Veteran had not been service connected for back disability.  The RO granted service connection for back disability and associated radiculopathy in a June 2014 rating decision.  

This case must be remanded for readjudication of the TDIU claim because the AOJ has not considered back disability in its decision regarding entitlement to a TDIU.  Further, since the January 2014 SOC, VA has included in the record a substantial amount of evidence regarding back disability.  This includes the May 2015 hearing testimony, which focused primarily on back disability.  See 38 C.F.R. §§ 19.31, 20.1304(c) (2017).  

Accordingly, the case is REMANDED for the following action:

After the completion of any action deemed appropriate, the Veteran's claim to a TDIU should be readjudicated.  All evidence received since the January 2014 SOC should be considered.  If any benefit sought remains denied, the Veteran should be provided with a Supplemental SOC.

The Veteran 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 (West 2014).



_________________________________________________
G. A. Wasik
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C. § 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) (2017).