Citation Nr: 1323640 Decision Date: 07/24/13 Archive Date: 08/01/13 DOCKET NO. 99-04 177A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois THE ISSUE Entitlement to an effective date prior to March 14, 1994, for the award of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), to include consideration of entitlement to a TDIU on an extra-schedular basis pursuant to 38 C.F.R. §§ 3.321(b) and 4.16(b). REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARINGS ON APPEAL The Veteran and C.B., M.D. ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from October 1986 to October 1988. This appeal to the Board of Veterans' Appeals (Board) arose from a February 2001 RO rating decision. In that decision, the RO: (1) granted an earlier effective date of March 14, 1994 for the award of a 40 percent rating for residuals of low back injury with disc involvement and fibromyositis; (2) granted an earlier effective date of March 14, 1994 for the award of a 40 percent rating for fibromyalgia syndrome; and (3) granted a TDIU, effective March 14, 1994. For purposes of clarity, a brief recitation of pertinent portions of the factual and procedural history of these claims follows. The Veteran filed a claim for service connection for residuals of a back injury on January 25, 1991. The RO granted service connection and assigned a 10 percent rating for residuals of a low back injury with probable L5-S1 disc degeneration, effective January 25, 1991 (the date of claim). The next document in the claims file is a November 23, 1992 statement in support of claim (VA Form 21-4138), which is a claim for an increased rating for the Veteran's service-connected back injury residuals. In March 1993, the RO granted an increased, 20 percent rating for the Veteran's service-connected back disability, which it recharacterized as residuals of a low back injury with disc involvement and fibromyositis, effective November 23, 1992. The Veteran filed a notice of disagreement (NOD) with the rating assigned in April 1993, the RO issued a statement of the case (SOC) in August 1993, and the RO accepted the Veteran's October 1993 request for an RO hearing as his substantive appeal. In an October 1998 rating decision, the RO continued the 40 percent rating for the service-connected low back injury with probable disc degeneration and fibromyositis and denied entitlement to a TDIU. The Veteran filed a NOD regarding this rating decision in January 1999 and a SOC was issued later that month. Thereafter, in the February 2001 rating decision on appeal, the RO revised previous RO rating decisions based on "difference of opinion" pursuant to 38 C.F.R. § 3.105(b). The Veteran filed an NOD with the assigned effective dates in August 2001. The RO did not issue a statement of the case (SOC), but, rather, issued a supplemental SOC (SSOC) as to these issues in September 2001. In August 2002, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge in Washington, D.C.; a transcript of that hearing is of record. In November 2002, the Board remanded the claim for an effective date prior to March 14, 1994 for the award of a TDIU to the RO, instructing the RO to issue a SOC as to this claim. After issuance of a SOC in January 2003, the Veteran filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals) later that month. In May 2003, the Board denied an effective date prior to March 14, 1994 for the award of a TDIU. The Veteran appealed that denial to the United States Court of Appeals for Veterans Claims (Court). In August 2004, counsel for the Veteran and the VA Secretary filed a Joint Motion for Remand; later that month, the Court issued an Order granting the Joint Motion, vacating the Board's May 2003 decision and remanding the matter on appeal to the Board for proceedings consistent with the Joint Motion. In the Joint Motion, the parties also indicated that, in August 2001 the Veteran filed a timely NOD as to, but the RO failed to issue an SOC as to "the issues of an earlier effective date for increased disability rating [sic] for appellant's service-connected low back disability, and for an earlier effective date for the award of service connection for fibromyalgia." See Joint Motion, at 8. In April 2005, the Board remanded these matters to the RO for further action (although, at that time, the claims involving the low back disability were characterized as entitlement to a rating in excess of 10 percent for residuals of a low back injury with disc involvement and fibromyositis prior to November 23, 1992 and entitlement to a rating in excess of 20 percent for residuals of a low back injury with disc involvement and fibromyositis, prior to March 14, 1994). In July 2005, the RO issued a SOC on the matters of entitlement to an effective date prior to March 14, 1994 for the award of service connection for fibromyalgia syndrome, and the matters of earlier effective dates for increased ratings for residuals of a low back injury with disc involvement and fibromyositis (although the latter issues were characterized as the Board had characterized them in the April 2005 remand). The Veteran's attorney filed a substantive appeal on those issues in August 2005. In July 2005, the RO also issued a SSOC reflecting the continued denial of an effective date prior to March 14, 1994 for the award of a TDIU. In February 2006, the Veteran and Dr. C.B., a private physician, testified during a Board hearing before the undersigned VLJ in Washington, D.C.; a transcript of the hearing is of record. In June 2006, the Board remanded the claims on appeal to the RO, via the Appeals Management Center (AMC), in Washington, D.C., for additional development. After completing the requested action, the AMC continued to deny each claim (as reflected in an April 2007 SSOC), and returned these matters to the Board for further appellate consideration. The Board notes that, in proceedings before the Court, and throughout much of this appeal, the Veteran was represented by a private attorney. However, in September 2007, the Veteran executed a VA Form 21-22, authorizing The American Legion to represent him in this appeal. The Board has recognized the change in representation. In January 2008, the Veteran testified during a third Board hearing before the undersigned in Washington, D.C. (with representation by The American Legion); a transcript of the hearing is of record. In June 2008, Board recharacterized the claims for earlier effective dates for the awards of higher ratings for the service-connected back disability, consistent with what the Veteran had requested and the RO had adjudicated. Also, in June 2008, the Board denied the claims for an effective date prior to November 23, 1992 for the award of an increased, 20 percent rating for residuals of low back injury with disc involvement and fibromyositis, an effective date prior to March 14, 1994 for the award of an increased, 40 percent rating for residuals of low back injury with disc involvement and fibromyositis, and an effective date prior to March 14, 1994 for the award of a TDIU. The Board also granted an effective date of November 23, 1992 for the award of service connection for fibromyalgia syndrome. In an August 2008 rating decision, implementing the Board decision, the RO awarded an earlier effective date of November 23, 1992 for fibromyalgia syndrome, evaluated as 40 percent disabling. In August 2008, the Veteran filed a Motion for Reconsideration of the Board's June 2008 decision. This motion was denied in October 2008. The Veteran appealed the June 2008 Board decision to the Court. In a May 2010 decision, the Court affirmed the Board's decision that granted an effective date of November 23, 1992, for the award of service connection for fibromyalgia syndrome and vacated the Board's decision with regard to the claims for earlier effective dates for the award of increased ratings for the low back disability and the claim for an earlier effective date for the award of a TDIU, remanding those claims to the Board for further proceedings consistent with the Court's opinion. In the May 2010 decision, the Court indicated that the reasons for vacating the Board's decision with regard the claim for an earlier effective date for the award of a TDIU, and the Court found that (1) the November 23, 1992 statement from the Veteran was an informal claim for a TDIU; (2) the Board did not compare the Veteran's income in 1991 and 1992 to the poverty thresholds for those years; (3) the evidence shows that the Veteran was last employed in September 1992; and (4) the Board failed to address the Veteran's unemployment from September 1992 until March 1994, a statement from a Social Security Administration (SSA) counselor, and entitlement to a TDIU on an extra-schedular basis. In August 2011, the Board denied the claim for an effective date prior to November 23, 1992, for the award of an increased, 20 percent rating for residuals of a low back injury with disc involvement and fibromyositis and the claim for an effective date prior to March 14, 1994, for the award of an increased, 40 percent rating for residuals of a low back injury with disc involvement and fibromyositis. Also, in August 2011, the Board remanded the claim for entitlement to an effective date prior to March 14, 1994, for the award of a TDIU, to include consideration of entitlement to a TDIU on an extra-schedular basis pursuant to 38 C.F.R. §§ 3.321(b) and 4.16(b), to the RO, via the AMC in Washington, D.C, for further development. In November 2012, the Board again remanded the claim for entitlement to an effective date prior to March 14, 1994, for the award of a TDIU, to include consideration of entitlement to a TDIU on an extra-schedular basis pursuant to 38 C.F.R. §§ 3.321(b) and 4.16(b), to the RO, via the AMC in Washington, D.C, for further development. After completing the requested development, the RO/AMC continued to deny the claim (as reflected in a May 2013 SSOC), and returned this matter to the Board for further appellate consideration. The Board notes that, in addition to the paper claims file, there is an electronic (Virtual VA) file associated with the Veteran's claim. A review of the documents in such file reveals copies of records and adjudicatory documents pertinent to the matter on appeal. For reasons expressed below, the claim on appeal is, again, being remanded to the RO, via the AMC. VA will notify the Veteran when further action, on his part, is required. REMAND Unfortunately, the Board finds that further RO/AMC action on the claim on appeal is warranted, even though such will, regrettably, further delay an appellate decision on this matter. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As detailed in the Board's November 2012 remand, the Court found in the May 2010 decision that the Veteran's November 23, 1992 statement in support of claim (VA Form 21-4138), constitutes a claim for a TDIU. See Memorandum Decision, at 5. The Board also observed that the combined rating for the Veteran's two service-connected disabilities prior to March 14, 1994, is 50 percent, which is not sufficient to meet the minimal schedular standards for a TDIU, even if considered to be of common etiology. See 38 C.F.R. §§ 4.16(a); 4.25 (2012). As also noted, however, a total rating, on an extra-schedular basis, may be granted, in exceptional cases (and pursuant to specifically prescribed procedures), when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. See 38 C.F.R. § 4.16(b) (2012). Here, as previously noted, although the Veteran does not meet the percentage requirements for a schedular TDIU prior to March 14, 1994, the evidence pertinent to that time period suggests that the Veteran was unemployed and unemployable. The Board thus found that this case meets the criteria for consideration of an extra-schedular rating as there are competent opinions that the Veteran was unable to secure or follow a substantially gainful occupation due to service-connected disabilities; and no affirmative evidence to the contrary. See Bowling v. Principi, 15 Vet. App. 1, 9-10 (2001); see also 38 C.F.R. § 4.16(b). In Bowling, the Court held that the Board could not award TDIU on an extra-schedular basis without first ensuring that the claim was referred to the appropriate first line authority for such consideration. Therefore, the Board remanded the claim for additional development, to include referral of the claim to the appropriate first line authority-VA's Chief Benefits Director or the Director of the VA Compensation and Pension Service-for a determination as to the Veteran's entitlement to an extra-schedular TDIU prior to March 14, 1994. Such administrative review was conducted in September 2012. The Director concluded that the totality of the evidence did not show that, for the period under consideration, the Veteran would be unemployable in all environments, including a sedentary one, solely due to service-connected disabilities. Therefore, entitlement to an extra-schedular TDIU for the period from November 23, 1992 to March 14, 1994 was denied. As noted in the Board's November 2012 remand, the Director did not explicitly address the provisions of 38 C.F.R. § 3.321(b), as requested by the Board. The Board points out that, in its decision, the Court acknowledged that "the effect of a service-connected disability appears to be measured differently for purposes of extra-schedular consideration under 38 C.F.R. § 3.321(b)(1)...and for purposes of a TDIU claim under 38 C.F.R. § 4.16" (citing Kellar v. Brown, 6 Vet. App. 157, 162 (1994)). As clearly noted, the former requires marked interference with employment; whereas the latter requires evidence of unemployability. Id.; see also Thun v. Peake, 22 Vet. App. 111 (2008). Notwithstanding the above, the Court nonetheless directed that, in addressing the Veteran's entitlement to an extra-schedular TDIU for the period in question, the applicability of 38 C.F.R. § 3.321(b)(1) must be addressed. Accordingly, and in view of the Board's prior remand, in November 2012, the Board had no alternative but to remand the matter of the Veteran's entitlement to an extra-schedular TDIU for the period prior to March 14, 1994, for referral to VA's Chief Benefits Director or the Director of VA's Compensation and Pension Service, to include specific consideration , and discussion of, the applicability of 38 C.F.R. § 3.321(b). In response to the Board's November 2012 remand directives, in April 2013, the AMC conducted a review to determine whether entitlement to an extra-schedular evaluation for the Veteran's service-connected disabilities was warranted. However, contrary to the Board's November 2012 remand directives, this matter was not submitted to the Director of VA's Compensation Service for consideration of entitlement to an extra-schedular TDIU for the period prior to March 14, 1994, to specifically include consideration, and discussion of, the applicability of 38 C.F.R. § 3.321(b). On remand, such a referral must be made. Prior to again referring the Veteran's TDIU claim for extra-schedular consideration, to ensure that all due process requirements are met, the RO/AMC should also give the Veteran another opportunity to provide information and/or evidence pertinent to the claim on appeal. The letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the RO/AMC should obtain any additional evidence for which the appellant provides sufficient information and, if necessary, authorization, following the procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties to notify and assist imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO/AMC of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO/AMC should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the matter on appeal. Accordingly, this matter is hereby REMANDED for the following action: 1. The RO/AMC should send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claim remaining on appeal that is not currently of record. The RO/AMC should also clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 2. If the Veteran responds, the RO/AMC should assist him in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the claims file. If any records sought are not obtained, the RO/AMC should notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After all records and/or responses from each contacted entity are associated with the claims file, or a reasonable time period for the Veteran's response has expired, the RO/AMC must again submit to VA's Chief Benefits Director or the Director of VA's Compensation and Pension Service, the matter of the Veteran's entitlement to an extra-schedular TDIU for the period prior to March 14, 1994, to include specific consideration , and discussion of, the applicability of 38 C.F.R. § 3.321(b). 4. To help avoid future remand, the RO/AMC must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 5. After accomplishing all requested action, as well as any additional action deemed warranted by the VCAA, the RO/AMC should readjudicate the claim on appeal in light of all pertinent evidence and legal authority. 6. If the benefit sought on appeal remains denied, the RO/AMC must furnish to the Veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND 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. 2012). _________________________________________________ JACQUELINE E. MONROE 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).