Citation Nr: 1300723	
Decision Date: 01/08/13    Archive Date: 01/16/13

DOCKET NO.  08-32 311	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUE

Entitlement to a total disability rating based on individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

J. Hager, Counsel


INTRODUCTION

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).

The Veteran served on active duty from February 1943 to October 1945 and from October 1947 to December 1949.

This matter initially came before the Board of Veterans' Appeals (Board) from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Decatur, Georgia.  In that decision, the RO denied entitlement to a TDIU.

In July 2010, the Veteran testified during a hearing at the RO before the undersigned; a transcript of that hearing is of record.

The Board remanded the claim in January 2011 and again in May 2012.

For the reasons stated below, the claim for a TDIU is again REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the Veteran if further action is required.


REMAND

In its May 2012 remand, the Board instructed that the RO adjudicate the Veteran's claim for service connection for a skin disorder prior to readjudicating the intertwined claim for a TDIU.  The Board also noted that the April 2011 VA examiner indicated that the Veteran's service connected left knee disability could limit him to sedentary employment, and that the Veteran did not complete high school and had no work experience in a sedentary environment.  Given this evidence that a service connected disability could preclude the Veteran from engaging in substantially gainful employment, and that the Veteran's combined 60 percent rating that did not meet the schedular criteria for TDIU, the Board instructed that if the Veteran did not meet the schedular standard for a TDIU after adjudication of the claim for service connection for a skin disorder, his claim for a TDIU should be submitted to the Director, Compensation and Pension Service (Director) for extraschedular consideration pursuant to 38 C.F.R. § 4.16(b) (2012).

In September 2012, the RO/AMC denied service connection for a skin disorder.  It did not, however, submit the claim to the Director for extraschedular consideration.  Instead, it wrote in its November 2012 supplemental statement of the case (SSOC) that the claim had not been submitted to the Director because there were no exceptional factors or circumstances associated with the Veteran's disability picture.  As noted by the Veteran's representative in the November 2012 post-remand brief, the RO/AMC's decision not to refer the claim to the Director constituted a failure to comply with the Board's May 2012 remand instructions and requires another remand.  Stegall v. West, 11 Vet. App. 268, 271 (1998).

The Board is precluded from considering entitlement to TDIU under 38 C.F.R. § 4.16(b) in the first instance.  Bowling v. Principi, 15 Vet. App. 1, 10 (2001).  It therefore has no choice but to grant the request for another remand.  The Board apologizes to the Veteran and his representative for the additional delay, but is bound by the applicable statutes and regulations, which preclude it from considering the claim for a TDIU in this case until after the RO/AMC has submitted it to the Director for extraschedular consideration.  38 U.S.C.A. § 7104(c) (West 2002); 38 C.F.R. § 20.101(a) (2012).

Accordingly, the claim for a TDIU 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.)

The RO/AMC must refer the TDIU claim to the VA Under Secretary for Benefits or the Director, Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 4.16(b).

If upon completion of the above action any benefit sought remains denied, the case should be returned to the Board after compliance with requisite appellate procedures, including issuance of a SSOC.

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 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. 2012).



_________________________________________________
R. FEINBERG
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 the appeal.  38 C.F.R. § 20.1100(b) (2012).