Citation Nr: 1330008 Decision Date: 09/19/13 Archive Date: 09/25/13 DOCKET NO. 10-17 055 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU) prior to August 30, 2004. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Tiffany Berry, Counsel INTRODUCTION The Veteran served on active duty from September 1954 to March 1958. This case initially came before the Board of Veterans' Appeals (Board) from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts, that granted the Veteran's claim of entitlement to a TDIU and assigned an effective date of August 30, 2004. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran seeks entitlement to an effective date prior to August 30, 2004, for the grant of a TDIU. He argues that his effective date for the grant of TDIU should be May 29, 2001, when he was awarded a 60 percent disability rating for his service connected back disability. On May 29, 2001, the Veteran filed a claim of entitlement to a disability rating in excess of 40 percent for his service-connected low back disability. In September 2007, the Board granted the Veteran a disability rating of 60 percent and in October 2007 rating decision implementing the Board's determination, the RO assigned an effective date of May 29, 2001, for the award of a TDIU. On August 30, 2004, the Veteran also filed a claim of entitlement to service connection for a heart disability, claimed as a pounding heart. In May 2009, the Board granted entitlement to service connection for supraventricular tachycardia. The May 2009 implementing rating decision assigned an initial disability rating of 10 percent, effective August 30, 2004. On October 23, 2007, the Veteran filed a claim of entitlement to a TDIU. In a March 13, 2008 statement submitted by the Veteran's representative, he argued that the TDIU was a result of his severe back condition going back to at least 2001. The representative also stated that as a result of the severity of his service-connected back condition, the Veteran is prevented from any form of gainful employment. As such, it appears that the Veteran's claim for a TDIU was based entirely on the severity of his service-connected back disability. In a signed rating decision dated March 24, 2008, the RO initially denied entitlement to a TDIU. However, in a May 2009 rating decision, the RO granted entitlement to a TDIU, effective August 30, 2004, citing the Veteran's service-connected back and heart disabilities in granting TDIU. The Veteran then perfected this appeal as to entitlement to an earlier effective date for the grant of a TDIU. In support of his claim for an earlier effective date, the Veteran submitted a rating decision dated on March 17, 2008, granting entitlement to a TDIU, effective from May 29, 2001. This rating decision includes a fax cover letter, presumably from the Veteran's representative, notifying the Veteran of the grant of his claim for a TDIU. However, as distinguishable from the March 24, 2008 rating decision initially denying the Veteran's claim for a TDIU, the March 17, 2008 rating decision is not signed by the rating specialist. Therefore, the Board is confronted with two conflicting documents prepared by the RO. Based on the facts as they are outlined above, the Board cannot determine whether the March 17, 2008 rating decision was promulgated in accordance with VA regulations and consistent with RO procedure set forth in VA's Adjudication Procedures Manual and Manual Rewrite. As recently stated by United States Court of Appeals for Veterans Claims (Court), "for an RO decision to be effective, the RO must provide notice in accordance with section 5104(a)." Sellers v. Shinseki, 25 Vet. App. 265, 274 (2012) ("A decision of a duly constituted rating agency ... shall be final and binding on all field offices of the Department of Veterans Affairs as to conclusions based on the evidence on file at the time VA issues written notification in accordance with 38 U.S.C.A. 5104.") (quoting 38 C.F.R. § 3.104(a)). Such notice must, among other things, be "provide[d] to the claimant and the claimant's representative and include an explanation of the procedure for obtaining review of the decision." Id. (citing 38 U.S.C.A. § 5104(a)). The Board acknowledges that the Veteran received "actual notice" of the March 17, 2008, rating decision from his representative; however, in light of the conflicting documents, it is unclear to the Board the process by which the Veteran's representative obtained a copy of the March 17, 2008, rating decision; whether the Veteran or his representative was notified of the decision by the RO; whether it was a tentative or draft decision (it was not signed); and whether it was an "authentic" decision. Thus, a remand is therefore required to determine whether the rating decision was promulgated in accordance with VA regulations and the Adjudication Manual and Manual Rewrite. Further, it must be determined how notice of the decision was sent to the Veteran's representative. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). Expedited handling is requested.) 1. Notify the Veteran and his representative that they may submit a statement addressing the circumstances of how they were advised by the RO of the March 17, 2008, determination, to include whether the Veteran was advised of his appellate rights. 2. Prepare a memorandum as to the promulgation of the March 17, 2008 rating decision, to include contacting the Boston RO to determine whether and how notice of that decision was disseminated. In the memorandum, the RO/AMC must: (a) Discuss whether the March 17, 2008, rating decision was a tentative or draft decision. In doing so, address the impact of the fact that the March 17, 2008 rating decision was not signed by any RO official. (b) State whether it was an "authentic" decision. (c) Discuss whether and the circumstances under whether the Veteran and/or his representative were notified of the March 17, 2008, determination, to include whether the Veteran and/or his representative received appellate rights. 3. Thereafter, readjudicate whether entitlement to a TDIU is warranted prior to August 30, 2004. If the claim is not granted in full, issue a supplemental statement of the case to the Veteran and his representative and provide an opportunity to respond before the case is returned to the Board. 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). _________________________________________________ STEVEN D. REISS 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) (2013).