Citation Nr: 1325624 Decision Date: 08/13/13 Archive Date: 08/16/13 DOCKET NO. 08-31 295 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an effective date prior to December 17, 2007, for the grant of a total disability rating based on individual unemployability (TDIU) under 38 C.F.R. § 4.16(b). REPRESENTATION Appellant represented by: African American PTSD Association WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The Veteran served on active duty from January 1982 to January 2006. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at an RO formal hearing conducted in March 2011. A transcript of the proceeding is of record. In February 2012, the Board remanded these matters to the RO so the Veteran could be afforded a hearing before a Veterans Law Judge (VLJ). She testified at a hearing held in July 2012, before the undersigned VLJ at the Atlanta RO. The transcript from that hearing has been associated with the claims file and reviewed. The Board remanded the case again in September 2012, this time to the Appeals Management Center (AMC) for additional evidentiary development and adjudicative action. After completing such development, the AMC continued to deny the claim (as reflected in an April 2013 SSOC), and returned this matter to the Board for further appellate consideration. The Board has reviewed both the Veteran's physical claims file and the record maintained in the Virtual VA paperless claims processing system to ensure complete consideration of all the evidence. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), (collectively also referred to as the Agency of Original Jurisdiction (AOJ)), in Washington, DC. VA will notify the appellant if further action is required. [Continued on Next Page] REMAND After a thorough review of the Veteran's claims file, the Board has determined that further action is necessary prior to the adjudication of the Veteran's claim for an earlier effective date for TDIU. In this regard, the Board is cognizant of the fact that this claim has been remanded twice in the past. Consequently, the Board wishes to assure the Veteran that it would not be remanding this claim again unless it was essential for a full and fair adjudication. The claim for an effective date for TDIU prior to December 17, 2007 was remanded in September 2012, in pertinent part, for initial review by the RO including possible referral of the matter to the Director, Compensation and Pension Service for extra-schedular consideration pursuant to 38 C.F.R. § 4.16(b). In a November 2012 notice letter to the Veteran, the AOJ explained that the Veteran's case was being referred to the Director of the Compensation and Pension Service to determine whether an extraschedular grant of TDIU was warranted prior to December 17, 2007. However, it is not apparent to the Board that this was done within the meaning of VA regulations. In the April 2013 SSOC, the AOJ relies on a February 2013 document, which is purported to be a determination from the Director, Compensation and Pension Service denying TDIU on an extra-schedular basis. However, this document does not appear to be from the Director, Compensation and Pension Service, as required by 38 C.F.R. § 4.16(b). Rather, the document appears to have been prepared by several AMC staff members, who found that an extra-schedular TDIU was not warranted. The memo was signed by a "Rating Specialist," a "Coach," and an individual with the title "Advisory Review Staff (211B) chief acting." Unfortunately, there is no indication that these individuals have the authority to substitute for the Director of Compensation and Pension Service or answer on his behalf; indeed, it is not apparent that the Director or appropriate designee actually reviewed and concurred with the findings in the February 13, 2013 memorandum. The Board regrets that a remand of this matter will further delay a final decision in the claim on appeal, but finds that such action is necessary in view of the foregoing discussion to ensure that the Veteran is afforded due process of law. Accordingly, the case is REMANDED for the following action: 1. The AOJ shall properly refer this case to the Director of Compensation and Pension Service for consideration of entitlement to TDIU prior to December 17, 2007 on an extraschedular basis under 38 C.F.R. § 4.16(b). In so doing, the documentation of the decision made for entitlement to TDIU on an extra-schedular basis must clearly show that the Director, or appropriate designee, of Compensation and Pension Service, actually rendered the determination. 2. The AMC/RO should then readjudicate the Veteran's claim. If the benefits sought on appeal remain denied, the Veteran and her representative should be provided with a Supplemental Statement of the Case (SSOC), containing notice of all relevant actions taken on the claims, to include a summary of the evidence and applicable law and regulations. An appropriate period of time should be allowed for response. 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 or by the United States Court of Appeals for Veterans Claims (Court) 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). _________________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).