Citation Nr: 1315533 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 08-35 638 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU) by reason of service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Paul S. Rubin, Counsel INTRODUCTION The Veteran had active service in the U.S. Army from January 1962 to January 1965. The TDIU issue on appeal implicitly came to the Board of Veterans' Appeals (Board) from a July 2007 rating decision issued by the RO, as part and parcel of an increased initial rating claim for the right knee. In a December 2011 Board decision, the Board adjudicated the increased initial rating issues for the service-connected right knee. The Board also remanded the issue of an increased rating for the service-connected hearing loss (this issue currently remains pending in remand status at the RO). Finally, the Board referred to the RO the issue of entitlement to a TDIU rating. The Veteran then appealed the Board's decision to refer to the RO, rather than remand, the TDIU issue to the United States Court of Appeals for Veterans Claims (Court). The Veteran did not contest the Board's adjudication of the increased initial rating issues for the service-connected right knee. Pursuant to an October 2012 Order and Joint Motion to Modify filed by the parties, the Court modified the Board's decision to reflect that the issue of entitlement to a TDIU is remanded to the RO for adjudication in the first instance, rather than referred. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The appeal is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND As noted, according to the October 2012 Order and Joint Motion to Modify, the Court instructed the Board to remand rather than refer the issue of entitlement to a TDIU for adjudication by the RO in the first instance. Specifically, the Court explained that where a claim is raised to the Board for the first time on appeal, the Board lacks jurisdiction over that claim and must refer that claim to the RO for consideration in the first instance. However, where an issue that is part and parcel of a claim properly before the Board on appeal from an adverse decision of that claim has not been adjudicated by the RO, the appropriate remedy is for the Board to remand rather than refer that issue. See Young v. Shinseki, 25 Vet. App. 201, 203 (2012) (per curium order) (recognizing that "referral of a matter is appropriate only when the Board lacks jurisdiction over the matter being referred; remand is the appropriate action when the Board has jurisdiction over the matter."); see Godfrey v. Brown, 7 Vet. App. 398, 409-10 (1995). In the December 2011 decision, the Board found that the issue of entitlement to a TDIU "has been raised by the record, as indicated by the Veteran's statements that his right knee pain played a role in his retirement." As such, it follows that a request for TDIU rating was reasonably raised. See 38 C.F.R. § 3.156(b); Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (a request for a TDIU, whether expressly raised by Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part and parcel of a claim for an initial or increased rating for a disability). See also Mayhue v. Shinseki, 24 Vet. App. 273, 280-282 (2011); Norris v. West, 12 Vet. App. 413, 421 (1999); Roberson v. West, 251 F.3d 1378, 1384 (Fed. Cir. 2001). As such, the issue of a TDIU rating was a component of the increased rating claims that were properly before the Board and not an independent claim raised for the first time on appeal. Although the Board added to the present appeal the issue of entitlement to a TDIU rating, the Board incorrectly referred the TDIU issue to the RO, when the proper remedy was to remand. In this regard, VA's Office of General Counsel has stated that when the issue of entitlement to a TDIU rating for a particular service-connected disability or disabilities is raised in connection with a claim for an increased rating for such disability or disabilities, the Board would have jurisdiction to consider the TDIU issue. If the Board determines that further action by the RO is necessary with respect to TDIU, the Board should remand, rather than refer, the TDIU issue for further development. See VAOPGCPREC 6-96 at para. 12, 13 (August 16, 1996); Cf. Godfrey v. Brown, 7 Vet. App. 398, 409 (1995). Thus, the parties to the October 2012 Joint Motion submitted that the proper remedy was for the Board to remand, rather than refer, the TDIU issue to the RO for adjudication. In light of this, the Board will follow the Joint Motion's instructions, and remand the TDIU matter for adjudication in the first instance by the RO. Accordingly, the case is REMANDED for the following action: The RO should take appropriate steps to develop and adjudicate the claim for a TDIU rating in light of all the evidence of record. If any benefit sought on appeal remains denied, the RO should furnish a fully responsive SSOC to Veteran and his representative and they should be afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran 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). _________________________________________________ STEPHEN L. WILKINS 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).