Citation Nr: 1123428 Decision Date: 06/21/11 Archive Date: 06/28/11 DOCKET NO. 09-27 556 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to a total disability compensation rating based on individual unemployability. 2. Entitlement to an effective date prior to July 30, 2009, for a 70 percent rating for posttraumatic stress disorder. 3. Entitlement to an effective date prior to July 27, 2009, for the award of a total disability compensation rating based on individual unemployability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from December 1965 to June 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in February 1998 of a Department of Veterans Affairs (VA) Regional Office (RO). Thereafter, it was appealed to the United States Court of Appeals for Veterans Claims (hereinafter "the Court") on two occasions, with the last occasion being in July 2008, whereupon the Court vacated a July 2006 Board decision and remanded the total disability compensation rating for additional development. In January 2009, the Board remanded the case to the RO for additional development to include adjudicating other inextricably intertwined issues that had been raised. The RO undertook such development and adjudicated numerous claims to include the total disability compensation rating. During this period, the Veteran submitted a substantive appeal, requesting a hearing at the RO before a Veterans Law Judge. (Evidently, at this point the Veteran's claim received a new docket number, yet it is not shown that additional appeals were properly perfected to the Board.) He was notified in February 2011 of a hearing scheduled in March 2011, but on the day of the hearing the Veteran cancelled it, having withdrawn all appealed issues. The claims file was then transferred back to the Board for further appellate consideration. The issues of an earlier effective date for a 70 percent rating for posttraumatic stress disorder and for the award of a total disability compensation rating based upon individual unemployability due to service-connected disability are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center in Washington, DC. FINDING OF FACT In an August 2009 rating decision, the RO granted the Veteran's claim of entitlement a total disability compensation rating based upon individual unemployability due to service-connected disability. CONCLUSION OF LAW The Veteran's claim of entitlement to a total disability compensation rating based upon individual unemployability due to service-connected disability is moot. 38 U.S.C.A. §§ 511(a), 7102, 7104, 7107 (West 2002); 38 C.F.R. §§ 19.4, 20.101 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION All questions of law and fact necessary to a decision by the Secretary of Veterans Affairs under a law that affects the provision of benefits by the Secretary to veterans or their dependents or survivors are subject to review on appeal to the Secretary. Decisions in such appeals are made by the Board of Veterans' Appeals. In its decisions, the Board is bound by applicable statutes, the regulations of the Department of Veterans Affairs and precedent opinions of the General Counsel of the Department of Veterans Affairs. See 38 U.S.C.A. §§ 511(a), 7104; 38 C.F.R. § 20.101. The principal functions of the Board are to make determinations of appellate jurisdiction, consider all applications on appeal properly before it, conduct hearings on appeal, evaluate the evidence of record, and enter decisions in writing on the questions presented on appeal. See 38 U.S.C.A. §§ 7102, 7104, 7107; 38 C.F.R. § 19.4. In an August 2009 rating decision, the RO granted the Veteran's claim of entitlement a total disability compensation rating based upon individual unemployability due to service-connected disability. The Veteran's representative in a December 2010 statement listed the issue on appeal before the Board as one for a combined evaluation greater than 60 percent for the Veteran's service-connected disabilities. Given the favorable rating decision of the RO in August 2009, the Veteran's claim of entitlement to a total disability compensation rating based upon individual unemployability due to service-connected disability before the Board is thus rendered moot. Accordingly, the appeal must be dismissed as no benefit remains to be awarded and no controversy remains. ORDER A total disability compensation rating based upon individual unemployability due to service-connected disability is dismissed. REMAND In an August 2009 rating decision, the RO granted the Veteran's claim of entitlement to a total disability rating based on individual unemployability due to service-connected disability, assigning an effective date of July 27, 2009. The RO also granted a 70 percent rating for the Veteran's posttraumatic stress disorder, effective from July 30, 2009. In September 2009, statements were received from the Veteran, which the Board construes to be the Veteran's notice of disagreement with the RO's decision regarding the assigned effective dates. When there has been an adjudication by the RO and a timely notice of disagreement has been filed, a statement of the case addressing the issue must be furnished to the Veteran. Manlincon v. West, 12 Vet. App. 238 (1999). Rather, in this case the RO interpreted the Veteran's statements in September 2009 as one for a new claim for an earlier effective date. Thereafter, the RO adjudicated the claims in a December 2009 rating decision, although one claim was construed as entitlement to an earlier effective date for service connection for posttraumatic stress disorder, rather than as an earlier effective date for an increased rating for the disorder. In making such determinations, there can be no freestanding claim for an earlier effective date because to allow such a claim would be contrary to the principle of finality set forth in 38 U.S.C.A. § 7105. Rudd v. Nicholson, 20 Vet. App. 296 (2006). In any case, the RO has not issued a statement of the case with respect to the issues for which he had expressed disagreement. The Board also notes that the Veteran had been scheduled for a hearing at the RO before a Veterans Law Judge in March 2011, but through his representative he requested to withdraw "all appealed issues." He did not specify the issues for withdrawal, and as he had yet to perfect any appeal with regard to the earlier effective date issues, the Board does not interpret his appeal withdrawal to involve the earlier effective date issues. Accordingly, the case is REMANDED for the following action: Furnish the Veteran a statement of the case on the claims for an effective date prior to July 30, 2009 for a 70 percent rating for posttraumatic stress disorder, and for an effective date prior to July 27, 2009 for the award of a total disability compensation rating based upon individual unemployability due to service-connected disability. In order to perfect an appeal of the claims to the Board, the Veteran must still timely file a substantive appeal after issuance of the statement of the case. 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 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 Supp. 2010). ______________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs