Citation Nr: 1124623 Decision Date: 06/29/11 Archive Date: 07/06/11 DOCKET NO. 10-09 316 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an effective date earlier than January 14, 2009, for the grant of a total rating based on individual unemployability (TDIU), to include on an extraschedular basis. ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1979 to December 1988, from June 1991 to June 1998, and from June 1998 to October 2002. This matter comes before the Board of Veterans' Appeals (Board) from a February 2009 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In that decision, the RO granted a TDIU, effective January 14, 2009. In an October 2007 rating decision, the RO granted service connection for posttraumatic stress disorder (PTSD) and assigned an initial 30 percent disability rating, effective May 16, 2003. The Veteran submitted a timely notice of disagreement (NOD) with regard to the initial 30 percent disability rating assigned for PTSD. She was sent a statement of the case (SOC) on February 20, 2009. In a contemporaneous rating decision, the RO assigned an initial 50 percent rating, effective May 16, 2003, and an initial 70 percent rating, effective January 14, 2009. However, the Veteran's substantive appeal (VA Form 9) was not received by the RO until May 14, 2009. In a May 22, 2009 letter, the RO informed the Veteran that her substantive appeal was untimely as she had until April 20, 2009 to submit her substantive appeal and provided her with her appellate rights. The Veteran did not appeal the RO's decision that her substantive appeal was untimely, thus the October 2007 rating decision with regard to the issue of a higher initial rating for PTSD became final. See 38 C.F.R. § 20.1103 (2010); see also 38 U.S.C.A. § 7105(d)(3); Roy v. Brown, 5 Vet. App. 554, 556 (1993); 38 C.F.R. § 19.32 (2010). As the October 2007 decision is final, the issue of entitlement to a higher initial rating for PTSD is not before the Board and the Veteran's untimely substantive appeal submitted in May 2009 is construed as a claim for an increased rating for PTSD. Thus, the issue of entitlement to an increased rating for PTSD has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action, on her part, is required. REMAND VA will grant a TDIU when the evidence shows that the Veteran is precluded, by reason of her service-connected disabilities, from obtaining or maintaining "substantially gainful employment" consistent with her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2010); VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The central inquiry is, "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In exceptional circumstances, where the Veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to secure or follow a substantially gainful occupation. 38 C.F.R. § 4.16(b). The Board must evaluate whether there are circumstances in the Veteran's case, apart from any nonservice-connected disability and advancing age, which would justify a TDIU due solely to the service-connected disability(ies). See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); see also Blackburn v. Brown, 5 Vet. App. 375 (1993). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). The United States Court of Appeals for Veterans Claims (Court) has held that entitlement to a TDIU is an element of all claims for a higher initial rating. Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). Entitlement to a TDIU is raised when a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. See Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Jackson v. Shinseki, 587 F.3d 1106, 1109-10 (Fed. Cir. 2009). Thus, when entitlement to a TDIU is raised during the appeal of a rating for a disability, it is part of the underlying claim for benefits. Rice, 22 Vet. App. at 454. The Veteran submitted a timely NOD with regard to the initial 30 percent disability rating assigned for PTSD in November 2007. Her original claim for service connection for PTSD was received by the RO on May 16, 2003 and included an April 2003 letter, in which John C. Lindgren, M.D. diagnosed the Veteran as having chronic PTSD, assigned a Global Assessment of Functioning score of 45 (indicative of serious problems). This physician opined that she was permanently disabled and unemployable due to PTSD, noting that she was severely compromised in her ability to sustain social and work relationships. However, the Veteran's schedular ratings for her service-connected disabilities did not meet the schedular requirements for a TDIU under 38 C.F.R. § 4.16(a) prior to January 14, 2009, at which time the RO assigned an initial 70 percent disability rating for PTSD. VA policy is to grant a TDIU in all cases where service-connected disabilities preclude gainful employment, regardless of the schedular ratings. 38 C.F.R. § 4.16(b). The Board is prohibited from assigning a TDIU on the basis of 38 C.F.R. § 4.16(b) in the first instance without ensuring that the claim is referred to VA's Director of Compensation and Pension (C&P) for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b). Bowling v. Principi, 15 Vet. App. 1 (2001). In light of the above, the Board finds that referral for consideration of award of a TDIU, prior to January 14, 2009, on an extraschedular basis, is warranted. Accordingly, the case is REMANDED for the following action: 1. Refer the case to VA's Director of C&P for consideration of entitlement to a TDIU under the provisions of 38 C.F.R. § 4.16(b), prior to January 14, 2009. 2. After completing the requested action, and any additional notification and development deemed warranted, readjudicate the claim for an effective date earlier than January 14, 2009, for the grant of a TDIU, to include on an extraschedular basis, in light of all pertinent evidence and legal authority. If any benefit sought on appeal remains denied, furnish to the Veteran an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford her the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal 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 Supp. 2010). _________________________________________________ M. R. VAVRINA Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2010).