Citation Nr: 1800794 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 08-06 807A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a low back disorder, to include as secondary to bilateral ankle/foot disability. 2. Entitlement to service connection for a right elbow disorder, to include as secondary to bilateral ankle/foot disability. REPRESENTATION Appellant represented by: Matthew D. Hill, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from October 1984 to October 1987. These matters are before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). A hearing was held before the Board in August 2011. A hearing transcript is of record. These matters were previously remanded by the Board in December 2011, November 2013, and September 2015 for further development and examination. The case is now before the Board once again. During the appeal process, additional rating actions were issued. Specifically, in a May 2014 rating action, service connection for bilateral midfoot ostearthritis with pes cavus was granted. Each foot was awarded a 20 percent rating. Also, in a January 2016 rating action, service connection was established for depressive disorder and a 50 percent rating was assigned. The Veteran submitted a Notice of Disagreement (NOD) contesting the evaluations awarded for each disability and the effective dates assigned for service connection. As the record does not reflect that the Agency of Original Jurisdiction (AOJ) has yet issued a Statement of the Case (SOC), these issues are not ready for appellate review by the Board at this time. Recently, the Veteran submitted private medical records dated in 2017. In effect, these records raised the issue of entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU) as a part of the increased rating claims for which a NOD has been filed. This issue has not been properly developed or certified for appellate consideration. This matter is referred to the RO for such further action as is deemed appropriate. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required on his part. REMAND In July 31, 2017, correspondence, the Veteran's attorney stated that the Veteran wished to withdraw his request for a hearing. Thus, in a November 14, 2017, letter, to the Veteran and his attorney, a Decision Review Officer (DRO) hearing scheduled for November 30, 2017, was canceled. However, the attorney submitted an additional statement on November 22, 2017, indicating that the Veteran had "not submitted anything stating he was waiving his right to a DRO hearing." The attorney explained that his previous letter which waived the right of a hearing was meant to apply to a Board hearing only. As a result of the above, a formal hearing before a DRO at the RO has been requested. The Veteran has a right to such a hearing, and one must be scheduled. See 38 C.F.R. § 20.700 (2017). A remand is necessary to schedule the requested hearing. Accordingly, the case is REMANDED for the following action: In accordance with appropriate procedures, the Veteran should be scheduled for a hearing before a DRO at the RO. The Veteran should be notified in writing of the date, time, and location of the hearing, and such notice must be associated with the claims file. If a hearing is held, a transcript of this hearing must be included in the file. The case should then be returned to the Board for further appellate consideration, if in order. The appellant has the right to submit additional evidence and argument on the matter or 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 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). _________________________________________________ BARBARA B. COPELAND 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).