Citation Nr: 1751961 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 12-24 053A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Joseph R. Moore, Esq. (Bergmann & Moore, LLC) ATTORNEY FOR THE BOARD A. Borman, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1976 to January 1978. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a May 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York, which denied the claim of entitlement to a TDIU. The Veteran submitted a notice of disagreement in November 2010; a statement of the case was issued in September 2012. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in March 2013; a transcript of that proceeding has been associated with the record. In a September 2014 rating decision, the RO denied entitlement to an increased evaluation of lumbosacral strain and residuals of a fracture of the 5th metatarsal shaft of the right foot. Additionally, the RO denied entitlement to service connection for osteoarthritis of the right foot and flat feet. In October 2014, the Veteran submitted notice of disagreement (NOD) as to these issues. A Statement of the Case (SOC) has not been issued and the Board is required to remand, rather than refer, these issues to the attention of the AOJ. See 38 C.F.R. § 19.9(c) (2017); Manlincon v. West, 12 Vet. App. 238 (1999). The issue on appeal is being REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Manlincon Issues For the reasons explained in the introduction, a Statement of the Case needs to be issued on the issues of: entitlement to an increased evaluation of lumbosacral strain and residuals of a fracture of the 5th metatarsal shaft of the right foot, and entitlement to service connection for osteoarthritis of the right foot and flat feet. See 38 C.F.R. § 19.9(c); Manlincon, supra. TDIU In contrast to the October 2017 statement by the Veteran's representative, the Veteran's TDIU claim is pending before the Board, not the RO, at this time. Nevertheless, remand of the TDIU claim is necessary as the Veteran has multiple issues that remain on appeal. The Board finds that the RO's potential assignment of an increased rating of the Veteran's lumbosacral strain and residuals of a fracture of the 5th metatarsal shaft of the right foot, will impact any decision respecting an award of TDIU. Additionally, if granted, the service connection claims for osteoarthritis of the right foot and flat feet may have the same effect. Therefore, a decision as to TDIU is premature at this point and is remanded as inextricably intertwined with the issues being remanded for a statement of the case. See Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). In September 2011, VA made a formal finding on the unavailability of the Veteran's vocational rehabilitation and employment records. However, in June 2017, VA located the records in question and associated them with the claims file. The Board finds that an automatic waiver of jurisdiction cannot be applied in this case. Specifically, the Veteran did not "submit" the evidence, but rather VA generated the evidence; the provision in that instance does not provide for an automatic waiver of jurisdiction, but rather requires that the Veteran explicitly waive AOJ initial review of that evidence. The Veteran has not done so in this case. Therefore, on remand, the RO must address the records when adjudicating the remaining issues on appeal. See 38 C.F.R. §§19.9; 20.1304(c) (2017). Accordingly, the case is REMANDED for the following action: 1. Furnish the Veteran and his representative a Statement to the Case that addresses the issues of entitlement to an increased evaluation of lumbosacral strain and residuals of a fracture of the 5th metatarsal shaft of the right foot, and entitlement to service connection for osteoarthritis of the right foot and flat feet. These issues should be returned to the Board only if the Veteran perfects a timely appeal in accordance with 38 U.S.C. § 7105 (2012). 2. Furnish the Veteran and his representative a Supplemental Statement to the Case that addresses the issue of entitlement to a TDIU. 3. All records of VA medical treatment prepared since February 2017 should be obtained and associated with the Veteran's claims file. 4. The RO should then readjudicate the claims on appeal in light of all of the evidence of record. If any issue remains denied, the RO should provide the Veteran and his representative a Supplemental Statement of the Case as to the issues on appeal, and afford him a reasonable period of time within which to respond thereto. 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. §§ 5109B, 7112 (2012). _________________________________________________ DEBORAH W. SINGLETON 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) (2017).