Citation Nr: 1644122	
Decision Date: 11/21/16    Archive Date: 12/01/16

DOCKET NO.  10-23 534	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUE

Entitlement to an effective date prior to May 6, 2009 for the grant of a total disability rating based on individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

J. Anderson, Associate Counsel

INTRODUCTION

The Veteran had active service from June 1975 to June 1980.

This matter comes before the Board of Veterans' Appeals (Board) from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). 

The Veteran testified at a Video Conference hearing before the undersigned Veterans' Law Judge in November 2015.  A transcript of that proceeding is of record.

This matter was previously before the Board in February 2016 when it was remanded for additional development.  It is again before the Board.

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


REMAND

The Veteran was awarded TDIU benefits effective May 6, 2009.  He seeks an effective date based on a September 14, 2007 claim.  While further delay is regrettable, additional development is needed. 

The Board notes that the Veteran submitted copies of tax return forms from 2006, 2007 and 2008.  The forms from 2006 and 2007 were Form 1040, Profit or Loss From Business, and included information concerning the Veteran's gross income.  For the self employed, both net and gross income is relevant in claims for TDIU.

The form submitted for 2008, however, Form 1065, Partner's Share of Income, Deductions, Credits, etc., includes only limited information and does not include gross income.  Such form does not appear to be the sole form to be submitted for tax purposes.  In this regard, Form 1040 provides instructions to attach a Form 1065 for partnerships.  Thus, it appears that the Form 1065 would not be the only form filed with respect to the Veteran's 2008 tax return.  On remand, the Veteran should be asked to provide a copy of any other tax forms that includes his gross income for 2008. 

Accordingly, this issue is REMANDED for the following action:

1.  Ask the Veteran to provide a copy of any other tax return forms that include his gross income for the 2008 filing year.  

2.  After undertaking the development above and any additional development deemed necessary, the Veteran's claim should be readjudicated.  If the benefit sought    on appeal remains denied, the appellant and his representative should be furnished a supplemental statement of the case and be given an appropriate period to respond thereto before the case is returned to the Board, if in order.

The Veteran has the right to submit additional evidence and argument on the matter 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).


____________________________________________
K. A. BANFIELD
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).