Citation Nr: 1328699	
Decision Date: 09/09/13    Archive Date: 09/17/13

DOCKET NO.  12-26 942	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUE

Entitlement to an effective date earlier than December 8, 2010 for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Appellant represented by:	Michael R. Viterna, Attorney at Law


ATTORNEY FOR THE BOARD

Paul S. Rubin, Counsel



INTRODUCTION

The Veteran had active service in the U.S. Marine Corps from March 1965 to May 1969.   His awards and decorations include the Combat Action Ribbon (CAR), the Purple Heart Medal, and the Presidential Unit Citation, among others.  

This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan.  The Veteran expressed disagreement with the effective date assigned for the award of a TDIU.  

A review of the Virtual VA paperless claims processing system reveals additional VA treatment records dated from 2009 to 2011.  However, in the August 2012 Statement of the Case (SOC), the RO indicated that it had reviewed these records in the Virtual VA system.  Thus, there is no prejudice in the Board considering these records.

The appeal is REMANDED to the RO in Detroit, Michigan.  VA will notify the appellant if further action is required.


REMAND

The RO awarded the Veteran a TDIU effective from December 8, 2010, which was both the date the increased rating / TDIU claim was received and the date of entitlement (based on the Veteran meeting the percentage requirements for TDIU on that date).  See 38 C.F.R. §§ 4.16(a), 4.25.  The Veteran and his attorney seek an earlier effective date for TDIU.  

A Social Security Administration (SSA) disability determination reveals that the Veteran was determined to be disabled and unemployable due to his service-connected disabilities effective from May 25, 2008.  However, complete SSA records are not present in the claims folder.

Complete SSA disability records must be obtained before deciding the earlier effective date appeal since these records may specifically address the Veteran's employability in the one-year period prior to the current December 8, 2010 effective date for TDIU.  VA has a duty to make reasonable efforts to assist a claimant to obtain evidence necessary to substantiate the claim.  38 U.S.C.A. § 5103A(a)(1); 38 C.F.R. § 3.159(c).  Although disability determinations by SSA are not controlling on VA, they are pertinent to the adjudication of a claim for VA benefits and VA has a duty to assist the Veteran in gathering these records.  Voerth v. West, 13 Vet. App. 117, 121 (1999); Hayes v. Brown, 9 Vet. App. 67, 74 (1996).  VA must make as many requests as necessary to obtain "relevant" SSA records, unless a determination is made that the records do not exist or that further efforts would be futile.  38 C.F.R. § 3.159(c)(2).  

Accordingly, the case is REMANDED for the following action:

1.  The RO must attempt to secure from SSA "complete" records associated with the Veteran's disability claim.  The RO must request copies of the SSA disability determination and all medical and administrative records considered.  If no records are available or do not exist, a response to that effect must be documented and the Veteran must be notified.

2.  Thereafter, the RO must consider all of the evidence of record and readjudicate the earlier effective date for TDIU issue on appeal. 

3.  If the benefit sought is not granted, the RO must refer the issue of an earlier effective date for TDIU prior to December 8, 2010 to the Director of Compensation and Pension Service for an extraschedular evaluation under 38 C.F.R. § 4.16(b).

4.  Following completion of #1-3 above, the RO must issue a Supplemental Statement of the Case and allow the Veteran and his attorney an opportunity to respond.

Thereafter, subject to current appellate procedure, the case must be returned to the Board for further consideration, if otherwise in order.  No action is required of the Veteran until he is otherwise notified by the RO. By this action, the Board intimates no opinion, legal or factual, as to any ultimate disposition warranted in this case.

The appellant 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).



_________________________________________________
CHERYL L.  MASON
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).