Citation Nr: 1312609 Decision Date: 04/16/13 Archive Date: 05/02/13 DOCKET NO. 07-28 474 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to an effective date earlier than October 14, 2008, for the grant of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. B. Yantz, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from December 1968 to August 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Philadelphia, Pennsylvania Department of Veterans Affairs (VA) Regional Office (RO). In January 2010, a Travel Board hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claims file. In May 2010 and in June 2012, the case was remanded for additional development. The Board notes that it has reviewed both the Veteran's physical claims file and "Virtual VA" (VA's electronic data storage system) to ensure that the complete record is considered. Additional documents pertinent to this appeal found in Virtual VA have been printed and associated with the physical claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if action on his part is required. REMAND The Veteran filed his claim for a TDIU rating on December 30, 2005. A July 2006 rating decision by the RO denied the claim. Thereafter, a May 2009 rating decision by the RO granted a TDIU rating, effective October 14, 2008 (the date on which the schedular rating requirements for a TDIU rating in 38 C.F.R. § 4.16(a) were initially met). Prior to October 14, 2008, the Veteran's service-connected disabilities included: lumbar spine degenerative disc disease he (rated 40 percent); right lower extremity sciatica (rated 10 percent); and left lower extremity radiculopathy (rated 10 percent); the combined rating for the disabilities was 50 percent. Thus, the schedular rating requirements for a TDIU rating under 38 C.F.R. § 4.16(a) were not met prior to October 14, 2008. The Veteran contends that he is entitled to an effective date of December 30, 2005 (the date that he filed his TDIU claim) for the grant of TDIU. He alleges that, for the period prior to October 14, 2008, he is entitled to TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b). In May 2010, the Board remanded this case to the RO, via the AMC, for additional development. An August 2011 rating decision by the VA "Tiger Team" (found in Virtual VA), granted the Veteran an effective date of December 30, 2005 for the award of the TDIU rating. Thereafter, a September 2011 rating decision by the VA "Tiger Team" (also found on Virtual VA) assigned an effective date of July 16, 2007 for the award of TDIU; upon granting service connection and a 20 percent rating for sciatica of each lower extremity, effective July 16, 2007 (which resulted in the schedular rating requirements for TDIU being met) . Inexplicably, the AMC then issued a supplemental statement of the case (SSOC) in November 2011 which denied an effective date earlier than October 14, 2008 for the award of a TDIU rating. In June 2012, the Board remanded this case to the RO, via the AMC, for additional development pertaining to extraschedular consideration under 38 C.F.R. § 4.16(b). On administrative review by the VA Director of Compensation in September 2012, it was determined that the Veteran was not entitled to an extraschedular TDIU rating prior to October 14, 2008. The most recent Rating Codesheet for the Veteran in the record before the Board (dated in September 2012 and issued by the RO) reflects that the effective date for the TDIU award is October 14, 2008. In November 2012, the AMC issued another SSOC which denied an effective date earlier than October 14, 2008 for the award of TDIU. Given all the discrepancies in the various rating decisions (and other administrative actions) noted above, the Board finds that this matter must be returned to the Agency of Original Jurisdiction (AOJ) for resolution and explanation of the various conflicting AOJ (and reviewing) determinations. Accordingly, the case is REMANDED for the following: 1. The RO must reconcile the record with regard to the following pertinent documents: (a) the May 2009 rating decision by the RO, which granted a TDIU rating, effective October 14, 2008; (b) an August 2011 rating decision by the "Tiger Team", which granted an effective date of December 30, 2005 for the grant of TDIU; (c) a September 2011 rating decision by the "Tiger Team" which granted an effective date of July 16, 2007 for the award of TDIU; (d) a November 2011 SSOC by the AMC, which continued the denial of an effective date earlier than October 14, 2008 for the award of TDIU; (e) a September 2012 Rating Codesheet by the RO, which reflects that the effective date for the Veteran's TDIU is October 14, 2008; and (f) a November 2012 SSOC by the AMC, which continued the denial of an effective date earlier than October 14, 2008 for the award of TDIU. 2. The RO should ensure that all of the development sought is completed, and then review the record and readjudicate the claim. If the Veteran cannot be granted the full benefit that he has sought (i.e., an effective date of December 30, 2005 for the grant of a TDIU rating), the RO should issue an appropriate SSOC (with a full explanation of how the actions outlined above were reconciled) and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board. 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). _________________________________________________ GEORGE R. SENYK 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).