Citation Nr: 1602076	
Decision Date: 01/19/16    Archive Date: 01/27/16

DOCKET NO.  10-39 645	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to a rating in excess of 50 percent for PTSD prior to September 17, 2009.

2.  Entitlement to a compensable rating for right ear hearing loss.

4.  Entitlement to a total disability rating based on individual unemployability (TDIU) for the period from June 25, 2007 to September 17, 2009.


REPRESENTATION

Appellant represented by:	Robert V. Chisholm, Attorney at Law


ATTORNEY FOR THE BOARD

B. Elwood, Counsel


INTRODUCTION

The Veteran served on active duty from December 1969 to November 1975.

These matters come before the Board of Veterans' Appeals  (Board) from June 2007 and November 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Offices (RO) in San Diego, California and Anchorage, Alaska, respectively.  In the June 2007 decision, the RO denied entitlement to a rating in excess of 50 percent for PTSD, a compensable rating for right ear hearing loss, and a TDIU.  In the November 2009 decision, the RO granted an increased (100 percent) rating for PTSD, effective from September 17, 2009.  The RO in Waco, Texas currently has jurisdiction over the Veteran's claims.

The Veteran requested a Board hearing before a Veterans Law Judge on VA Form 9s dated in September 2010 and August 2012.  He subsequently withdrew his hearing request in September 2012.

In March 2014, the Board denied the Veteran's appeal for an effective date earlier than September 17, 2009 for the award of a 100 percent rating for PTSD.  The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court).

In December 2014, the Court set aside the Board's March 2014 decision, in part, and remanded the case for readjudication in compliance with directives specified in a November 2014 Joint Motion filed by counsel for the Veteran and VA.  In pertinent part, the Joint Motion specified that the parties only sought remand as to that portion of the Board's decision that determined that the issue of entitlement to a TDIU was not on appeal before the Board.  The Joint Motion did not pertain to the Board's denial of an effective date earlier than September 17, 2009 for the grant of a 100 percent rating for PTSD.

In June 2015 rating decision the RO determined that there was no CUE in an October 2004 rating decision which assigned an effective date of November 27, 2001 for the grant of service connection for PTSD.  In November 2015, the Veteran's representative submitted a notice of disagreement with the June 2015 decision.  In response to the notice of disagreement, the originating agency notified the Veteran of the post decision review process and offered options for the type of review that the Veteran could choose.  The Veteran chose a Decision Review Officer review and that matter is being processed.  It is not ripe for appellate review and will not be considered by the Board at this time.  

The issue of entitlement to a TDIU for the period from June 25, 2007 to September 17, 2009 is addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  In a November 2009 statement, the Veteran's representative at the time indicated that a 100 percent rating for PTSD would resolve all issues on appeal.

2.  The November 2009 grant of a 100 percent rating for PTSD moots the appeal with respect to the claim for increased ratings for PTSD and right ear hearing loss.


CONCLUSION OF LAW

The criteria for dismissal of an appeal by the Board, as to the issues of entitlement to a rating in excess of 50 percent for PTSD prior to September 17, 2009 and entitlement to a compensable rating for right ear hearing loss, have been met.  38 U.S.C.A. § 7105 (West 2014).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C.A. § 7105.  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204.  Withdrawal may be made by the Veteran or by his or her authorized representative in writing or on the record at a hearing on appeal.  Id.  In the present case, a November 2009 signed statement was received from the Veteran's representative at the time which indicated that the Veteran had stated that a 100 percent rating for PTSD "would resolve all issues currently on appeal."  The RO subsequently granted a 100 percent rating for PTSD by way of the November 2009 rating decision.  Hence, the Board finds that there remain no allegations of errors of fact or law for appellate consideration with respect to the issues of entitlement to a rating in excess of 50 percent for PTSD prior to September 17, 2009 and entitlement to a compensable rating for right ear hearing loss.  Accordingly, the Board does not have jurisdiction to review these issues on appeal, and the appeal is dismissed.


ORDER

The appeal, as to the issues of entitlement to a rating in excess of 50 percent for PTSD prior to September 17, 2009 and entitlement to a compensable rating for right ear hearing loss, is dismissed. 


REMAND

Entitlement to a TDIU may be an element of a claim for an increased rating.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  Entitlement to a TDIU is raised where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability.  Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); see Jackson v. Shinseki, 587 F.3d 1106, 1109-10 (2009) (holding that an inferred claim for a TDIU is raised as part of an increased rating claim only when the Roberson requirements are met).

In the present case, the Veteran submitted a formal claim for a TDIU (VA Form 21-8940) in December 2006 and indicated that he was unable to secure or follow any substantially gainful occupation due, in part, to his service-connected PTSD.  A June 25, 2007 rating decision, inter alia, denied entitlement to TDIU.  The Veteran was notified of the determination and did not appeal within one year of the decision.  There has been no allegation of error in the determination and the decision is final.  See 38 U.S.C.A. § 7105 (West 2014).  

There is evidence that the Veteran's service-connected PTSD may have worsened after June 25, 2007 decision and prior to September 17, 2009.  The Board finds that a remand is necessary to obtain a retrospective opinion as to the earliest date that it can be ascertained that the Veteran's service-connected disabilities, alone, were sufficient to preclude him from securing and following all substantially gainful employment.  See Chotta v. Peake, 22 Vet. App. 80, 86 (2008) (discussing situations when it may be necessary to obtain a "retrospective" medical opinion to determine the date of onset or severity of a condition in years past).  

Furthermore, the Veteran's percentage ratings did not meet the schedular requirements for a TDIU under 38 C.F.R. § 4.16(a) (2015) until September 17, 2009.  VA policy is to grant a TDIU in all cases where service-connected disabilities preclude gainful employment, regardless of the percentage evaluations, but the Board is prohibited from assigning a TDIU on this basis in the first instance without ensuring that the claim is referred to VA's Director of Compensation and Pension (C&P) for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b).  Bowling v. Principi, 15 Vet. App. 1 (2001); 38 C.F.R. § 4.16(b). Therefore, upon remand, if the evidence reflects that there was any period prior to September 17, 2009 during which the Veteran was unemployable due to service-connected disabilities and there was any such period that he was unemployed and did not meet the schedular requirements for a TDIU under 38 C.F.R. § 4.16(a), the AOJ shall refer the case to VA's Director of C&P for consideration of entitlement to a TDIU under the provisions of 38 C.F.R. § 4.16(b) during those periods.

Moreover, a December 2007 VA mental health note appears to indicate that the Veteran was a participant in the VA vocational rehabilitation program.  Evidence contained in his vocational rehabilitation folder may be relevant to the issue of entitlement to a TDIU.  Hence, the AOJ shall ensure that all such records are associated with the file upon remand.

Accordingly, the case is REMANDED for the following action:

1.  Associate with the file all contents of the Veteran's vocational rehabilitation folder, including all counseling records.

All efforts to obtain these records must be documented in the file.  Such efforts shall continue until the records are obtained or it is reasonably certain that they do not exist or that further efforts would be futile.

3.  Then, all relevant electronic records contained in the VBMS and Virtual VA systems, including a copy of this remand along with any records obtained pursuant to this remand, shall be referred to a VA medical professional with appropriate expertise to review and provide a retrospective opinion as to the impact of the Veteran's service-connected disabilities on his ability to secure and follow substantially gainful employment consistent with his education and occupational experience for the period from June 25, 2007 to September 17, 2009.  

The opinion provider shall indicate whether it is at least as likely as not (50 percent probability or more) that the Veteran's service-connected disabilities (PTSD, right ear hearing loss, and tinnitus) would, in combination or individually and without regard to any non service-connected disabilities, have been sufficient to preclude him from securing and following substantially gainful employment for which his education and occupational experience would have otherwise qualified him during any period from June 25, 2007 to September 17, 2009.

In formulating the above opinion, the opinion provider shall acknowledge and comment on a March 2015 vocational assessment from E.J. Calandra, M.A., CDMS.

The opinion provider must provide reasons for each opinion given.

4.  Thereafter, if the evidence reflects that the Veteran was unemployable due to service-connected disabilities for any period from June 25, 2007 to September 17, 2009 and there is any such period that he was unemployed and did not meet the scheduler requirements for a TDIU under 38 C.F.R. § 4.16(a), the AOJ shall refer the case to VA's Director of Compensation and Pension for consideration of entitlement to a TDIU under the provisions of 38 C.F.R. § 4.16(b)  during those periods.

5.  If the benefit sought on appeal remains denied, the AOJ shall issue a supplemental statement of the case. After the Veteran is given an opportunity to respond, the case shall be returned to the Board.

No action is required of the Veteran until notified by the RO; however, the veteran is advised that failure to report for any scheduled examination may result in denial of the claim.  38 C.F.R. § 3.655 (2015).  The Veteran has the right to submit additional evidence and argument on the 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 2014).



______________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs