Citation Nr: 1338204	
Decision Date: 11/21/13    Archive Date: 12/06/13

DOCKET NO.  09-25 695	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUE

Entitlement to a total disability rating based on individual unemployability (TDIU), to include on an extraschedular basis, for the period from October 17, 2007 to March 7, 2010.


REPRESENTATION

Appellant represented by:	Christopher Loiacono, Agent


ATTORNEY FOR THE BOARD

C. Bruce, Counsel


INTRODUCTION

The Veteran had active military service from December 2003 to September 2005.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.

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


REMAND

The Veteran's claim for TDIU, as well as several requests for increased ratings, was received on October 17, 2007. In an April 2013 rating decision, the Veteran was granted a 100 percent disability rating for his service-connected PTSD, effective March 7, 2010.  For the period after March 7, 2010, the Veteran's claim for TDIU is moot. The law provides that if VA has found a veteran to be totally disabled as a result of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that veteran totally disabled on any other basis. See Locklear v. Shinseki, 24 Vet. App. 311, 318, footnote 2 (2011), Herlehy v. Principi, 15 Vet. App. 33, 35   (2001) (finding request for TDIU moot where 100 percent schedular rating was awarded for the same period).

However, for the period from October 17, 2007 to March 7, 2010, the Veteran's claim of entitlement to TDIU remains pending. 

Prior to March 7, 2010, the Veteran was service connected for post-traumatic stress disorder (PTSD), rated as 50 percent disabling, degenerative joint disease and pes planus, left foot, rated as 20 percent disabling, L4-L5 status post diskectomy with degenerative changes, rated as 10 percent disabling, for a combined rating of 60 percent. The Veteran does not meet the schedular requirements for TDIU prior to March 7, 2010. See 38 C.F.R. § 4.16(a).

However, where the percentage requirements in §4.16(a) are not met, entitlement to the benefit on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran's background including his employment and educational history. 

The Veteran's claim should be submitted to the Director of Compensation Service, for extra-schedular consideration. 38 C.F.R. § 4.16(b).

Accordingly, the case is REMANDED for the following action:

1. Refer to the Veteran's claim for TDIU to the Director of Compensation Service, for the consideration of an extraschedular rating under 38 C.F.R. § 4.16(b) (2013) to determine the effect of the severity of the Veteran's service-connected PTSD, degenerative joint disease and pes planus, left foot, and, L4-L5 status post diskectomy with degenerative changes, combined, to his ability to obtain and maintain substantially gainful employment for the period October 17, 2007 to March 7, 2010.

Please send the claims folder to the Director of Compensation for review.

2. After completion of the above and any other development deemed necessary, review the expanded record and determine if the record contains sufficient evidence to warrant entitlement to the benefits sought. Unless the benefits sought on appeal are granted, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and afforded an opportunity to respond

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).



_________________________________________________
Vito A. Clementi
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).