Citation Nr: 1334154	
Decision Date: 10/28/13    Archive Date: 11/06/13

DOCKET NO.  10-25 810	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio



THE ISSUE

Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU), prior to May 9, 2011.



ATTORNEY FOR THE BOARD

James R. Siegel, Counsel









INTRODUCTION

The appellant is a Veteran who served on active duty from October 1964 to October 1967.  This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Cleveland, Ohio, Department of Veterans Affairs (VA) Regional Office (RO) that denied the Veteran's claim for TDIU.  When this case was previously before the Board in November 2012, it was remanded for additional development of the record.  

The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the Veteran if further action on his part is required.


REMAND

A July 2011 rating decision granted service connection for coronary artery disease, status post coronary artery bypass graft, rated 100 percent, and for scar, residual of a coronary artery bypass graft, rated 0 percent.  Each of these evaluations was effective May 9, 2011.  

Following the Board's November 2012 remand, a February 2013 rating decision increased the evaluation for posttraumatic stress disorder (PTSD) to 100 percent, effective December 12, 2012.  

The July 2013 supplemental statement of the case (SSOC) indicates the Veteran's claim for TDIU was made on the basis he was unemployable due to PTSD and diabetes mellitus, and that his claim for TDIU is rendered moot by the award of a schedular 100 percent rating for PTSD.  The Veteran asserts in a July 2013 statement that such is not the case; the Board agrees.  

The Veteran's claim for TDIU was received in November 2008, and has been pending since then.  A schedular 100 percent rating effective May 9, 2011 does not render moot the matter of entitlement to a TDIU rating prior to that date (from the date of filing of a claim for TDIU in November 2008).  The July 2013 SSOC does not address the matter of entitlement to a TDIU rating from 2008 until May 9, 2011.  Corrective action is necessary.

The case is REMANDED for the following:

1.  The RO should advise the Veteran of what remains needed to substantiate the claim for a TDIU rating prior to May 9, 2011.  He should be afforded opportunity to respond/supplement the record.

2.  The RO should then arrange for any further development (of evidence regarding the Veteran's employability) necessary to properly adjudicate the matter of entitlement to a TDIU rating prior to May 9, 2011, and readjudicate the claim .  If is remains denied, the RO should furnish the Veteran an appropriate SSOC and afford him opportunity to respond.  The case should then be returned to the Board, if in order, for further appellate consideration.

The appellant 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 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).


_________________________________________________
GEORGE R. SENYK
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).