Citation Nr: 1805701	
Decision Date: 01/29/18    Archive Date: 02/07/18

DOCKET NO.  11-19 485	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUE

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


REPRESENTATION

Appellant represented by:	Jeffrey Bunten, Attorney


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

S. Mountford, Associate Counsel

INTRODUCTION

The Veteran had active military service from May 1981 to August 1981.

This matter comes before the Board of Veterans' Appeals (Board) from the January 2010 and May 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.

The Veteran appeared at a March 2016 hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is associated with the record.  This matter was previously before the Board in November 2017 and was remanded for further development.

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


REMAND

Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration.  See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017).  

In November 2017, the Board remanded this matter and instructed the RO to refer the Veteran's claim of entitlement to a TDIU on an extraschedular basis to the Director, Compensation and Pension Service.  To date, this has not occurred.

As a matter of law, a remand by the Board confers upon the Veteran the right to compliance with the Board's remand order. Stegall v. West, 11 Vet. App. 268, 270-71 (1998). As such, in accordance with Stegall, remand for full compliance with the Board's prior remand is warranted. 

Since the claims file is being remanded, it should be updated to include any outstanding VA treatment records.  See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992).  

Accordingly, the case is REMANDED for the following action:

1. Obtain any outstanding VA treatment records and associate those documents with the Veteran's claims file. 

2. Refer the Veteran's claim of entitlement to a TDIU on an extraschedular basis to the Director, Compensation and Pension Service.

3. Following completion of the above, and a review of any additional evidence received, the RO should also undertake any other development it deems to be necessary.

4. Then, the RO should readjudicate the Veteran's claim.  If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran should be provided a supplemental statement of the case and be given an adequate opportunity to respond.  Thereafter, the case should be returned to the Board for further appellate action.

By this remand, the Board intimates no opinion as to any final outcome warranted.  
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.A. §§ 5109B, 7112 (West 2014).



_________________________________________________
MICHAEL MARTIN
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).