Citation Nr: 1622572	
Decision Date: 06/06/16    Archive Date: 06/21/16

DOCKET NO.  13-34 212	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi


THE ISSUE

Entitlement to an effective date prior to April 19, 2006 for a grant of a total disability rating based on individual unemployability (TDIU), to include entitlement on an extra-schedular basis.


REPRESENTATION

Veteran represented by:	Sean A. Ravin, Attorney


ATTORNEY FOR THE BOARD

L. S. Kyle, Associate Counsel


INTRODUCTION

The Veteran served on active duty from August 1946 to March 1948.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which implemented the Board's prior grant of entitlement to TDIU.

In October 2015, the appellant's representative requested a Board hearing at the Central Office to present testimony of a licensed psychologist and nationally certified rehabilitation counselor.  After receiving information pursuant to a Freedom of Information Act (FOIA), the appellant's representative submitted a brief that indicated the Veteran waives the right to submit additional evidence or argument and requested a decision without any further delay.  Thus, the Board deems the hearing request withdrawn.  See 38 C.F.R. § 20.702(e) (2015).  The Veteran will have the opportunity to request a hearing, while this appeal is on remand.

It should be noted that the issue of whether the Veteran's attorney is entitled to 20 percent of the Veteran's past due benefits plus an Equal Access to Justice Act (EAJA) fee was certified with the issue of an earlier effective date for the grant of TDIU.  However, that issue will be addressed in a separate decision as the Veteran's attorney is the appellant.

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the Veteran if further action is required.


REMAND

In the January 2012 rating decision, the AOJ assigned an effective date of April 19, 2006 to the Board's prior grant of entitlement to TDIU.  The AOJ assigned this date because it is when the Veteran first met the schedular percentage requirements for TDIU.  See 38 C.F.R. § 4.16(a) (2015).  However, it is established VA policy that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled.  38 C.F.R. § 4.16(b).

The Veteran filed a TDIU claim in March 2005.  The record suggests that the functional impairment caused by his service-connected disabilities forced him to end his career as a barber in December 2004.  Therefore, the Veteran's TDIU claim should be submitted to the VA Director of Compensation and Pension Services for an initial determination of whether TDIU is warranted on an extra-schedular basis prior to April 19, 2006.  See Barringer v. Peake, 22 Vet. App. 242 (2008) (holding the Board must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record).

Accordingly, the case is REMANDED for the following action:

1.  Refer the issue of entitlement to an effective date prior to April 19, 2006 for TDIU to the Director of Compensation and Pension Service for extra-schedular consideration in accordance with 38 C.F.R. § 4.16(b).

2.  If any benefit sought on appeal remains denied, issue a supplemental statement of the case.  Then, return the case to the Board, if otherwise in order.

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 2014).

_________________________________________________
Mark D. Hindin
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).