Citation Nr: 1827552 Decision Date: 05/01/18 Archive Date: 05/14/18 DOCKET NO. 12-26 966 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an initial rating in excess of 20 percent for diabetes mellitus, type II. 2. Entitlement to an initial rating in excess of 10 percent for diabetic retinopathy associated with diabetes mellitus, type II. 3. Entitlement to a total disability rating based on individual unemployability (TDIU), prior to October 11, 2013. REPRESENTATION Veteran represented by: Christopher Loiacono, Agent ATTORNEY FOR THE BOARD M. Thompson, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from June 1964 to June 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2009 (diabetes mellitus), August 2009 (diabetic retinopathy), and March 2010 (TDIU) rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In determining the rating decisions on appeal, the Board notes that the Veteran was granted service connection for diabetes mellitus in an April 2009 rating decision, and diabetic retinopathy in an August 2009 rating decision. The Board finds that the Veteran filed a January 2010 notice of disagreement (NOD) to the ratings assigned when he submitted a statement indicating he was submitting evidence in support of increases. Although the RO has considered a March 2010 rating decision as the rating decision on appeal, the Board finds that the Veteran timely filed a notice of disagreement to the April 2009 and August 2009 rating decisions, and those are the correct rating decisions on appeal. 38 C.F.R. § 20.201 (2017). This case was previously before the Board in January 2015, when the claims were remanded in order to afford the Veteran a Board hearing. A hearing was scheduled for June 2015. In a June 2015 letter the Veteran, through his agent, indicated that he was waiving his right to testify at the scheduled hearing, with respect to these issues. This case was remanded by the Board in May 2017 and has since been returned to the Board for appellate review. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board finds additional action is required prior to appellate review. A remand by the Board confers on a claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998). Under 38 C.F.R. §19.31, the agency of original jurisdiction will furnish a Supplemental Statement of the Case (SSOC) if, pursuant to a remand by the Board, it develops additional evidence. 38 C.F.R. §§ 19.31(c), 19.38 (2017). A Supplemental Statement of the Case is a document prepared by the agency of original jurisdiction to inform the appellant of any material changes in, or additions to, the information included in the Statement of the Case or any prior Supplemental Statement of the Case. 38 C.F.R. § 19.31. There is no legal authority for a claimant to waive, or the RO to suspend, this requirement (contrast 38 C.F.R. §§ 19.31(c) and 19.38 with 38 C.F.R. § 20.1304(c), where legal authority does allow for waiver of initial RO review of pertinent evidence submitted by the claimant after certification of the appeal to the Board; see also Section 501 of the Camp Lejeune Act of 2012). When the AOJ receives pertinent evidence relevant to a claim properly before it that is not duplicative of evidence already discussed in the statement of the case (SOC) or a supplemental statement of the case (SSOC), it must prepare an SSOC addressing that evidence. 38 C.F.R. § 19.31(b)(1) (2017). Further, when evidence is received prior to the transfer of a case to the Board, an SSOC must be furnished to the Veteran and his or her representative as provided in 38 C.F.R. § 19.31, unless the additional evidence is duplicative or not relevant to an issue on appeal. 38 C.F.R. § 19.37 (a) (2017). As noted above, there is no legal authority for a claimant to waive, or the RO to suspend, this requirement. The May 2017 Board remand ordered that the Veteran be provided VA examinations for diabetes mellitus type II and diabetic retinopathy. After the development was completed, the RO was instructed to readjudicate the claims for increase, along with the claim for TDIU. The Veteran underwent VA examinations in August 2017, and reports of those examinations have been associated with the Veteran's file. However, no SSOC has been issued readjudicating the claims. Thus, a remand is required so that an SSOC may be issued. Accordingly, the case is REMANDED for the following action: Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested. Readjudicate the claims on appeal, to include consideration of the relevant medical evidence received following the September 2016 SSOC and the May 2017 Board remand. If any benefits sought are not granted, provide the Veteran and his representative with a Supplemental Statement of the Case. An appropriate period of time should be allowed for the Veteran and his representative to respond before the case is returned to the Board. 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 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). _________________________________________________ CAROLINE B. FLEMING 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).