Citation Nr: 1308409 Decision Date: 03/12/13 Archive Date: 03/20/13 DOCKET NO. 10-48 320 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to an effective date prior to August 6, 2009 for the grant of a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD B. Thomas Knope, Counsel INTRODUCTION The Veteran served on active duty September 1979 to September 1983, and from December 1990 to May 1991. This matter is on appeal from a February 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. The Veteran has since moved, and jurisdiction over the claim is currently with the RO in Muskogee, Oklahoma. In a February 2013 statement, the Veteran's representative has raised a new claim on the issue of entitlement to service connection for an acquired psychiatric disorder (claimed as both PTSD and depression). While this claim was denied by the RO in a February 2010 rating decision, it does not appear that the Veteran submitted a timely notice of disagreement to the denial of this claim. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 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). In March 2011, the Board remanded the issue on appeal in order to afford the Veteran a personal hearing before the Board. In June 2011, the Veteran testified before a hearing officer, and a copy of the hearing transcript is of record. However, since the hearing officer who conducted that hearing is no longer at by the Board, an additional hearing was offered to the Veteran in a February 2012 letter. To date, the Veteran has not responded, and the Board presumes that the Veteran wishes to proceed with this claim without an additional Board hearing. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND In December 2012, the issue on appeal was remanded by the Board in order to obtain the treatment records submitted in conjunction with a claim for benefits with the Social Security Administration (SSA), as well as the Veteran's Vocational Rehabilitation and Education (VR&E) file. Both of these records have since been obtained and, based on this new evidence, the Board determines that further development must be undertaken before the claim may be adjudicated. In general, total unemployability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability: that is, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). In order to be considered unemployable for purposes of this section, there must be either (a) a single disability that is rated at 60 percent or more, or (b) multiple disabilities with a combined rating of at least 70 percent, with at least rated at least 40 percent. Id. If a Veteran fails to meet the threshold minimum percentage standards enunciated in 38 C.F.R. § 4.16(a), TDIU may still be warranted on an extra-schedular basis if a veteran is unable to secure or follow a substantially gainful occupation by reason of a service-connected disability or disabilities. However, before TDIU may be granted on this basis, the issue must be first referred for review by the Director of Compensation and Pension Service. 38 C.F.R. § 4.16(b). See also Fanning v. Brown, 4 Vet. App. 225 (1993). In the context of assigning the appropriate effective date, claims for TDIU are treated the same as claims for an increased rating for a specific disability. See also Rice v. Shinseki, 22 Vet. App. 447 (2009) (a claim for an increased rating for a service-connected disability by definition includes a claim for TDIU). In such cases, the effective date for such a claim is generally the date the claim was received by the RO, but may also reach back to any point within a year prior to the date of the claim where it is "factually ascertainable" that an increase in disability is warranted based on the evidence of record. 38 C.F.R. § 3.400(o)(2); see also Hazan v. Gober, 10 Vet. App. 511 (1997); Swanson v. West, 12 Vet. App. 442 (1999). In this case, the evidence indicates that the Veteran was granted service connection for a chronic strain in the right interscapula region and for chronic neuritis in the sight posterior superior iliac crest in a January 2006 rating decision. He was granted a 10 percent disability rating for each disability. In a subsequent July 2008 rating decision, he was granted service connection for a thoracolumbar strain with a separate 40 percent disability rating. Although the Veteran's overall disability rating was now 50 percent, the RO determined in October 2008 that TDIU was not warranted, as the Veteran still failed to meet the schedular requirements (even though he had a newly service-connected disability), and the evidence did not indicate that he was unemployable to his service-connected disabilities. No new and material evidence was submitted within a year of this rating decision. See Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2011) (if relevant evidence is submitted within a year a rating decision any subsequent decision based on such evidence relate back to the original claim). In August 2009, the Veteran submitted a new claim, seeking an increased rating for his thoracolumbar strain, as well as entitlement to service connection for his left knee and foot, and for bilateral hearing loss. Under Rice, his claim for an increased rating includes a claim for TDIU if raised by the record. In a February 2010 decision, the RO granted service connection for his left knee disability, with two separate 10 percent disability ratings based on both instability and limitation of motion. See VAOPGCPREC 23-97. All were made effective August 6, 2009, the date of his claim. In a separate rating decision in February 2010, the RO granted TDIU on the basis that all of the Veteran's service-connected disabilities had a common etiology and were considered as a single disability for TDIU purposes. See 38 C.F.R. § 4.16(a). Thus (for TDIU purposes) he now had a "single disability" that was "60 percent or more" and was entitled to TDIU on a schedular basis. The RO assigned an effective date of August 6, 2009, the date when he met the schedular criteria. In his April 2010 notice of disagreement, the Veteran argued that he was determined to be unemployable by VA in August 2008, and he is entitled to TDIU from that time. In support of his argument, the Veteran's representative has also argued in a February 2013 statement that the RO failed to adequately consider whether TDIU was warranted on an extra-schedular basis prior to August 6, 2009. The Board notes that the Veteran's VR&E file includes an August 2008 narrative from a vocational rehabilitation counselor who interviewed the Veteran and had knowledge of his situation. After reviewing the Veteran's treatment and occupational history, this counselor determined that the Veteran "has not overcome the effects of his impairment to employability, and he lacks skills that would be compatible with his disability limitations." Although the Veteran's VR&E file was apparently reviewed by the RO, this August 2008 opinion was not mentioned in its January 2013 supplemental statement of the case. Thus, even though the Veteran is not entitled to TDIU prior to August 6, 2009 on a schedular basis (and the Veteran does not contend otherwise), there is evidence to support his argument that he has been unemployable due to his service-connected disabilities since August 2008. However, TDIU may not be granted on an extraschedular basis in the first instance. Rather, the claim must be remanded in order for the RO to refer the claim to C&P for extra-schedular consideration, after which time the claim may be readjudicated. 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) (2012). Expedited handling is requested.) 1. Refer the issue on appeal to the Director of Compensation and Pension for a determination as to whether the Veteran is entitled to an effective date prior to August 6, 2009, for his TDIU rating on an extraschedular basis in accordance with the provisions of 38 C.F.R. § 4.16(b). 2. After this development is completed, in addition to any other development it deems necessary, the RO should readjudicate the claim. If the benefit sought on appeal remains denied, the Veteran should be furnished an appropriate SSOC and provided opportunity to respond. Then, return the case to the Board for further appellate consideration, as appropriate. The appellant has the right to submit additional evidence and argument on the matter or 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.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ F. JUDGE FLOWERS 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) (2012).