Citation Nr: 1327231	
Decision Date: 08/26/13    Archive Date: 08/29/13

DOCKET NO.  97-27 540	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, New York


THE ISSUE

Entitlement to an effective date earlier than February 8, 2002 for grant of a total disability evaluation based on individual unemployability (TDIU).  


REPRESENTATION

Appellant represented by:	Daniel G. Krasnegor, Esquire


ATTORNEY FOR THE BOARD

James G. Reinhart, Counsel



INTRODUCTION

The Veteran served on active duty from January 1964 to July 1975.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York.  

The appeal is REMANDED to the RO.  VA will notify the Veteran if further action is required.


REMAND

A remand is necessary so that the RO can refer this case to the Director, Compensation and Pension Service for consideration as to whether TDIU is warranted on an extraschedular basis prior to February 8, 2002.  

In September 2009, the Board remanded this matter to the RO.  It directed the RO to readjudicate the issue of entitlement to TDIU, to include a determination of whether referral to the Director, Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 4.16(b) was warranted.  In the March 2011 rating decision on appeal, the RO granted TDIU effective February 8, 2002, explaining that February 8, 2002 was the date that his combined evaluation for service-connected disabilities reached 70 percent.  The Veteran appealed that decision as to the effective date assigned.  In the August 2011 Statement of the Case, the RO explained that it had not referred the matter to the Director, Compensation and Pension Service because the evidence did not show that the Veteran was precluded from gainful employment due to a service-connected condition prior to February 8, 2002. 

In cases where a Veteran is unemployable due to service-connected disability and has met certain compensation percentage requirements, either the RO or the Board may grant TDIU on a schedular basis in the first instance.  38 C.F.R. § 4.16(a) (2012).  However, if a Veteran is unemployable due to service-connected disability and those percentages are not met, then the issue of entitlement to TDIU on an extraschedular basis should be referred to the Director, Compensation and Pension Service.  38 C.F.R. § 4.16(b).  Prior to February 8, 2002, the percentages necessary for a grant of schedular TDIU were not met in this case.  However, the favorable and unfavorable evidence is sufficient to warrant referral to the Director, Compensation and Pension Service for consideration of extraschedular TDIU.  Specifically, there is evidence that the Veteran was unemployed back to 1997 or 1998.

Accordingly, the case is REMANDED for the following action:

1.  Refer to the Director, Compensation and Pension Service, consideration of entitlement to TDIU on an extraschedular basis for the period prior to February 8, 2002.  Include with that referral a full statement as to the Veteran's service-connected disability, his employment history, his educational and vocational attainment, a copy of the determination of the Social Security Administration awarding disability benefits effective in August 1998, and all other factors having a bearing on this issue.  

2.  If the benefit sought is not granted in full, provide the Veteran and his representative with a supplemental statement of the case, allow an appropriate opportunity for reply, and then return the matter to the Board, if in order.  

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).



_________________________________________________
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 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).