Citation Nr: 1436588 Decision Date: 08/15/14 Archive Date: 08/20/14 DOCKET NO. 09-45 577 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an effective date prior to March 31, 2009 for the award of a total disability evaluation based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Avery M. Schonland, Associate Counsel INTRODUCTION The Veteran had active service from June 1980 to October 1980 and from April 1983 to April 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veterans Benefits Management System contains only the Veteran's November 2009 substantive appeal on the issue of entitlement to an earlier effective date for the award of TDIU. The Virtual VA claims file contains records that are either duplicative or irrelevant to the issue on appeal. In an August 2009 notice of disagreement, the Veteran asserted clear and unmistakable error (CUE) in the July 2009 rating decision. However, as the Veteran appealed that rating decision, it is not final. A claimant cannot raise a CUE claim in reference to a non-final RO decision. Best v. Brown, 10 Vet. App. 322, 325 (1997). As such, the Board will not address whether there was CUE in that July 2009 rating decision. See 38 C.F.R. § 3.105(a) (2013). In an April 2005 submission, the Veteran raised the issues of reopening claims of service connection for periodontal disease and lacerations of right index and middle fingers. In a June 2014 appellate brief, the Veteran's representative raised the issues of direct service connection for arthritis of the hips, secondary service connection for gastroesophageal reflux disease, sciatica, and depression as associated with his low back disability, and a claim for aid and attendance. These issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2013). The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND Remand is required to obtain outstanding VA treatment records. The Veteran regularly sought treatment for his service-connected lower back disability at the Tuscaloosa VA Medical Center through September 2004, to include receiving prescription medications for his disability. There are no treatment records beyond September 2004 in the claims file. Remand is also required for a review of the claims file and an opinion. It is noted that the Veteran did not meet the criteria for a schedular TDIU until March 31, 2009. See 38 C.F.R. §§ 3.340, 3.341, 4.16 (2013). Prior to that time, therefore, any award of TDIU would be on extra-schedular basis. A claim for TDIU may be referred to the Compensation and Pension Service when a veteran does not meet the percentage standards of 38 C.F.R. § 4.16(a) but is otherwise unemployable due to service-connected disabilities. 38 C.F.R. § 4.16(b). On remand, the AOJ should obtain the VA treatment records since September 2004 and obtain a medical opinion to determine if the Veteran was unemployable due to service-connected disabilities prior to March 31, 2009. Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate VA Medical Centers, and obtain and associate with the claims file all outstanding records of treatment. A specific request should be made for any records from the Tuscaloosa VMAC for treatment since September 2004. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified, and this should be documented for the record. The required notice must then be provided to the Veteran and his representative. 2. After obtaining any outstanding VA treatment records, obtain an opinion regarding the impact of the Veteran's service-connected conditions on his employment beginning in 2003 to March 2009. The paper and electronic claims should be made available to the examiner for review, and the examiner should state in the examination report that the claims file has been reviewed. An explanation for all opinions expressed should be provided. A social and industrial survey must be obtained to ascertain the Veteran's work or work-like functioning from beginning in 2003. If the examiner determines that examinations regarding the severity of the Veteran's service-connected disabilities are necessary, or that an interview of the Veteran is necessary, prior to providing the requested opinions, such arrangements shall be made. The report from this survey must include comments on the Veteran's day-to-day functioning and the degree of industrial impairment that the Veteran experiences as a result of his service-connected disabilities. The individual conducting the survey may seek initial or additional development in any survey area that would shed more light on the Veteran's ability to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, prior to March 31, 2009. The examiner should address the functional effects of each of the service-connected disabilities, in conjunction, so that the Board may make a determination of unemployability. The examiner should consider the Veteran's education and occupational experience, irrespective of age and any nonservice-connected disorders. 3. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated, to include consideration of whether the claim should be referred to the Chief Benefits Director or the Director, Compensation and Pension Service. 38 C.F.R. § 4.16(b) (2013). If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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. 2013). _________________________________________________ K. MILLIKAN 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).