Citation Nr: 1234979	
Decision Date: 10/09/12    Archive Date: 10/17/12

DOCKET NO.  03-17 127	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi


THE ISSUE

Entitlement to an effective date earlier than October 3, 1997 for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).   


(The issue of whether payment of attorney fees from past due benefits at the 20 percent rate in the calculated amount of $10,290.80 are reasonable will be discussed in a separate decision).  


ATTORNEY FOR THE BOARD

Kristi L. Gunn, Counsel



INTRODUCTION

The Veteran, who is the Appellant, had active service from August 1978 to July 1981, from October 1981 to November 1986, and from April 1987 to May 1987.  

This matter comes before the Board of Veterans' Appeals (Board) from a February 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which granted a TDIU, effective August 2, 2000.  

In a July 2004 decision, the Board denied entitlement to an earlier effective date prior to August 2, 2000 for the grant of a TDIU.  The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans' Claims (Court).  Pursuant to the July 2005 Joint Motion for Remand, the Court vacated the July 2004 Board decision and remanded the appeal to the Board for additional development and readjudciation.  

In a June 2006 decision, the Board granted an earlier effective date of October 3, 1997, for the grant of a TDIU.  Again, the Veteran appealed the Board's decision to the Court.  In a September 2007 Joint Motion for Partial Remand, the Court vacated the June 2006 Board decision and remanded the case for compliance with terms of the joint motion.  

In March 2008, January 2010, and August 2010, the Board remanded the claim for additional development and adjudicative action.  The case has been returned to the Board for further appellate review.  

The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC.  


REMAND

In August 2010, the Board remanded the claim for earlier effective date for TDIU with instructions to submit the issue to the Director of Compensation and Pension service for an adjudication of TDIU under 38 C.F.R. § 4.16(b) only (where combined rating percentages are not met under 38 C.F.R. § 4.16(a)).  The period for consideration of TDIU was indicated to be from May 13, 1987 (the first day after discharge from service) to October 3, 1997 (the date of grant of TDIU). 

The Board's August 2010 remand requested that afterwards the claim be readjudicated and, if not granted, to issue a supplemental statement of the case to the Veteran.  In October 2011, the Director of Compensation conducted an administrative review and provided a decision as to the issue of whether a TDIU was warranted under 38 C.F.R. § 4.16(b).  In October 2011, the Director decided that a TDIU on the basis of 38 C.F.R. § 4.16(b) prior to October 3, 1997 was not warranted.  While the RO complied with the first directive, it failed to issue a supplemental statement of the case following the Director's decision; thus, a remand for issuance of a supplemental statement of the case is necessary.  

The United States Court of Appeals for Veterans Claims (Court) has held "that a remand by this Court or the Board confers on a veteran or other claimant, as a matter of law, a right to compliance with the remand orders."  Stegall v. West, 11 Vet. App. 268, 271 (1998).  As such, compliance with the terms of the remand is necessary prior to further appellant review, and if not, "the Board itself errs in failing to ensure compliance."  Id.  Therefore, in effort to comply with the August 2010 Board remand for issuance of a supplemental statement of the case, the Board remands yet a fourth time for the earlier effective date appeal to be readjudicated and issuance of a supplemental statement of the case.  

In order to ensure due process, the appeal for an earlier effective date than October 3, 1997 for TDIU is REMANDED for the following action:

Readjudicate on the merits the issue of entitlement to an effective date earlier than October 3, 1997 for a TDIU.  Such readjudication should also include consideration of the evidence received subsequent to the August 2010 Board remand.  If the benefit sought on appeal is not granted, the Veteran should be provided with a supplemental statement of the case, and should be afforded the appropriate time period within which to respond thereto.  

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 claim must be afforded expeditious treatment.  The law requires that all claims 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. 2011).



_________________________________________________
J. Parker
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) (2011).