Citation Nr: 18159006 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 18-37 813 DATE: December 18, 2018 REMANDED Entitlement to an earlier effective date prior to March 14, 2013 for the grant of a total disability rating due to individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1975 to May 1978 and from December 2003 to June 2006. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), in Guaynabo, the Commonwealth of Puerto Rico. Entitlement to an earlier effective date for a TDIU Unfortunately, due to reasons that follow, a remand is required. Although the Board regrets this delay, it is necessary to ensure the Veteran is afforded adequate due process and claim development assistance. In an August 2018 Board remand decision, the Board remanded the issues of entitlement to a higher initial disability rating for posttraumatic stress disorder (PTSD) in excess of 50 percent prior to March 14, 2013, and in excess of 70 percent thereafter, as well as the issue of entitlement to a TDIU prior to March 14, 2013; the Board took jurisdiction over the issue of a TDIU prior to March 14, 2013 pursuant to Rice v. Shinseki, 22 Vet. App.447, 453–54 (2009). The basis for the August 2018 remand was the March 2017 Notice of Disagreement (NOD) filed in response to the September 2016 rating decision on appeal. The August 2018 Board Remand found that the March 2017 NOD had challenged both the ratings and the effective dates assigned to the Veteran’s PTSD (which had been increased to 70 percent effective March 14, 2013) and TDIU (which had been assigned an effective date of March 14, 2013) in the September 2016 rating decision. Noting that the RO had acknowledged the March 2017 NOD in April 2017 but had not yet issued a Statement of the Case (SOC), the Board declined to exercise jurisdiction until the RO had acted, citing Smith v. Gober, 236 F.3d. 1370 (Fed. Cir. 2001) (where facts underlying separate claims are “intimately connected,” interests of judicial economy and avoidance of piecemeal litigation require that the claims be adjudicated together). Thus, the issues of a higher initial rating for PTSD and a TDIU prior to March 14, 2013 were remanded to the Agency of Original Jurisdiction (AOJ) with instructions to readjudicate those matters in a Supplemental Statement of the Case (SSOC), after responding to the March 2017 NOD. A review of the record indicates that in response to the March 2017 NOD, the RO issued a SOC in July 2018 as to the issue of entitlement to an earlier effective date for a TDIU. VA subsequently received a VA Form 9, Appeal to Board of Veterans’ Appeals, in July 2018, and the earlier effective date issue was forwarded to the Board. However, as discussed above, per the directives of the August 2018 Board remand, the AOJ was to issue a SSOC readjudicating both the TDIU effective date issue and the PTSD rating issue. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In July 2018, the Veteran’s representative submitted argument indicating that the Veteran’s employment history from 2006 onwards supported entitlement to a TDIU due to his service-connected PTSD and asserted entitlement to a TDIU on an extraschedular basis. As the AOJ has not yet issued a SSOC on the PTSD rating issue as directed by the August 2018 Board Remand, it would be premature for the Board to issue a decision on the inextricably intertwined issue of an effective date prior to March 14, 2013 for the grant of a TDIU. Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the Board remands the TDIU earlier effective date question to be readjudicated alongside the PTSD rating question as directed by the August 2018 Board Remand. The matter is REMANDED for the following action: Per the remand directives of the August 2018 Board remand, readjudicate the issues of a higher initial rating for PTSD, rated as 50 percent disabling between June 17, 2006 and March 14, 2013, and as 70 percent disabling thereafter, and an effective date prior to March 14, 2013 for the grant of a TDIU. All evidence received since the September 2016 SSOC should be considered. If any benefit sought on appeal remains denied, the Veteran and representative should be provided a new SSOC. An appropriate period of time should be allowed for response before the case is returned to the Board. E. BLOWERS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Marcella Coyne, Associate Counsel