Citation Nr: 1604180 Decision Date: 02/04/16 Archive Date: 02/11/16 DOCKET NO. 07-37 187 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUE Entitlement to an effective date earlier than November 30, 2006, for a total disability rating based on individual unemployability (TDIU) on an extraschedular basis. REPRESENTATION Appellant represented by: John S. Berry, Esq. ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel INTRODUCTION The Veteran served on active duty from April 2003 to August 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RU) in Fort Harrison, Montana. An April 2011 rating decision granted entitlement to TDIU and assigned an effective date of January 12, 2009. The Veteran filed a timely notice of disagreement with the effective date and in a subsequent September 2011 rating decision the RO granted an effective date of November 20, 2007. As this grant did not represent a complete grant of the benefits requested, the matter continued to the Board and in a June 2012 determination, the Board granted entitlement to an effective date for the grant of TDIU of November 30, 2006. In that same determination, the Board remanded the issue of entitlement to an effective date earlier than November 30, 2006, on an extraschedular basis. Following certification, in an April 2014 determination, the Board denied entitlement to an effective date earlier than November 30, 2006, on an extraschedular basis. The Veteran appealed the Board's determination as to the effective date for TDIU to the Court of Appeals for Veterans Claims (Court) and in an August 2015 Joint Motion for Partial Remand, the parties petitioned the Court to vacate and remand the issue of entitlement to an effective date prior to November 30, 2006, for TDIU on an extraschedular basis. An August 2015 Court Order granted the petition. In addition to the foregoing, the April 2014 determination, in relevant part, remanded the issues of entitlement to service connection for a disorder manifested by sexual dysfunction and entitlement to an increased rating for an acquired psychiatric disability on an extraschedular basis. The Board notes that an April 2015 Supplemental Statement of the Case (SSOC) continued the denial of these issues. The RO, however, has not recertified these issues to the Board. Indeed, in an October 2015 deferred rating decision the RO noted that additional development was necessary to comply with the April 2014 Board remand, specifically referral of the increased rating claim to the Director, Compensation Service, for consideration of an increased rating on an extraschedular basis. As such, the issues are not currently before the Board. This appeal was processed using the Veteran's Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. Accordingly, any future consideration of the Veteran's case should take into consideration the existence of these electronic records. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The April 2014 Board decision determined that it had no authority to assign an extraschedular rating under 38 C.F.R. § 4.16(b) where the Director, Compensation Service, had already concluded that an extraschedular rating for TDIU for the period prior to November 30, 2006, was not warranted. The August 2015 Joint Motion observed that in Wages v. McDonald, 27 Vet. App. 233 (2015), the Court held that the Board was not bound by the determinations of the Director, Compensation Service, and that the statutory mandate required the Board to render the final decision for the Secretary on all questions arising under 38 U.S.C.A. § 511(a), including entitlement to TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). As discussed above, the Board remanded the issue of entitlement to an increased rating for a psychiatric disorder in April 2014. The remand specifically directed that consideration for an increased rating on an extraschedular basis be considered, to include the period prior to November 30, 2006. Any determination as to the merits of an increased rating for this period would necessarily affect the TDIU rating for the same period. As such, the Board finds that the Veteran's TDIU claim is inextricably intertwined with the remanded increased rating claim. See Harris v. Derwinski, 1 Vet. App. 181 (1991) (holding that two or more issues are inextricably intertwined if one claim could have significant impact on the other). Thus, adjudication of the Veteran's TDIU claim must be deferred pending the development previously ordered for the Veteran's psychiatric disorder claim, to include the pending extraschedular consideration by the Director, Compensation Service. Accordingly, the case is REMANDED for the following action: After completion of the development ordered for the Veteran's increased rating claim for her service-connected psychiatric disorder, as discussed in the Board's previous April 2014 remand, and conducting any additional development deemed necessary, readjudicate the Veteran's claims for entitlement to service connection for a disorder manifested by sexual dysfunction, entitlement to an increased rating for an acquired psychiatric disability on an extraschedular basis, and for entitlement to an effective date earlier than November 30, 2006, for TDIU. If a complete grant of the requested benefits is not granted, issue a supplemental statement of the case (SSOC) to the Veteran and her representative, and they should be given an opportunity to respond, before the case is returned to the Board. 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 2014). _________________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).