Citation Nr: 1805516	
Decision Date: 01/29/18    Archive Date: 02/07/18

DOCKET NO.  14-25 333	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to an initial evaluation in excess of 10 percent for hallux valgus, right foot. 

2.  Entitlement to an initial evaluation in excess of 10 percent for hallux valgus, left foot.

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


REPRESENTATION

Veteran represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Veteran 
ATTORNEY FOR THE BOARD

S. Schick, Associate Counsel


INTRODUCTION

The Veteran served on active duty from February 1976 to January 1983. 

This case comes before the Board of Veterans' Appeals (the Board) from an October 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). 

In his November 2011 notice of disagreement (NOD), the Veteran requested an earlier effective date of July 30, 2010, for the grant of service connection for his for pseudo folliculitis barbae with residual scarring on face (also claimed as scars from shaving) and for the grant of service connection for residuals of cyst removal from neck.  Thereafter, in an April 2014 rating decision, the RO granted the earlier effective date of July 30, 2010, for service connection for pseudo folliculitis barbae with residual scarring on face (also claimed as scars from shaving) and the earlier effective date of July 30, 2010, for service connection for residuals of cyst removal from neck.  Accordingly, the issues are no longer before the Board on appeal. 

The Veteran had a hearing before the undersigned Veterans Law Judge in April 2017.  A transcript of that proceeding has been associated with the claims file.

At his April 2017 Board hearing, the Veteran raised the issue of TDIU.  Pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), a TDIU is an element of the appeals of an initial rating.  Thus, the Veteran's TDIU claim is part of his claim for an increased disability rating for his service-connected bilateral hallux valgus.  Therefore, the Board has included entitlement to a TDIU as an issue on appeal.


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


REMAND

The Board notes that since the April 2014 statement of the case (SOC), additional evidence relevant to the claims for increased ratings for bilateral hallux valgus have been associated with the record and a supplemental statement of the case (SSOC) has not been issued to the Veteran.  

Although in an April 2017 Statement in Support of Claim the Veteran waived AOJ review of evidence he submitted, there is additional evidence relevant to his claims in which the Veteran has not waived AOJ review, including updated VA CAPRI records and a February 2016 VA foot examination report.  Accordingly, a remand is warranted in order to provide the Veteran with a SSOC.

As the Veteran's claim for a TDIU is inextricably intertwined with the current increased rating claims, the Board also remands the claim for entitlement to TDIU.

Accordingly, the case is REMANDED for the following action:

The AOJ should readjudicate the claims for increased initial evaluations for service-connected bilateral hallux valgus disabilities and entitlement to TDIU.  If the determination of any of the Veteran's claims is less than fully favorable, he and his representative must be furnished with a SSOC and given an opportunity to respond before the case is returned to the Board.

The Veteran and his representative have 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 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).




_________________________________________________
MICHAEL LANE
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).