Citation Nr: 20011283 Decision Date: 02/11/20 Archive Date: 02/11/20 DOCKET NO. 12-04 655 DATE: February 11, 2020 REMANDED The claim of entitlement to an effective date earlier than January 12, 2007, for the award of a total disability rating based on individual unemployability (TDIU), is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1943 to April 1945. This appeal to the Board of Veterans’ Appeals (Board) arose from June 2010, February 2014, and June 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The procedural history of this case is a lengthy one involving multiple actions by the Board and several appeals to and remands from the United States Court of Appeals for Veterans Claims (Court). As this procedural history has been detailed in the prior actions in the appeal, it will only be repeated herein as necessary to explain the state of the issue currently before the Board. Most recently, in a February 2017 decision, the Board denied entitlement to an effective date earlier than January 12, 2007, for the award of a TDIU, claimed on the basis of clear and unmistakable error (CUE) in December 1999 and June 2007 rating decisions. As part of that decision, the Board found that the evidence of record at the time of the December 1999 rating decision raised the issue of entitlement to a TDIU as part of the Veteran’s increased rating claims. The Board determined, however, that entitlement to a TDIU was implicitly denied by the Department of Veterans Affairs (VA) Regional Office (RO) and that the Veteran had reasonable notice that entitlement to a TDIU had been denied. The Board further found that the Veteran had not established that had the RO explicitly adjudicated the issue of entitlement to a TDIU in its December 1999 rating decision, a manifestly changed outcome would have occurred. Thereafter, the Veteran appealed the Board’s denial to the Court. In June 2019, the Court issued a Memorandum Decision wherein it reversed the Board’s February 2017 decision and remanded the matter to the Board for further action consistent with the Court’s decision. Specifically, the Court did not disturb the Board’s finding that the evidence of record demonstrated that an informal request for a TDIU had been raised prior to the December 1999 rating decision. The Court did, however, find several errors with regard the Board’s application of the implicit denial doctrine in this case and ultimately concluded that the Veteran did not receive reasonable notice that the RO had denied a request for a TDIU at the time of the December 1999 rating decision and that the Board had abused in its discretion in the CUE context by holding otherwise. The Court determined that its finding that in regard was sufficient to overturn the Board’s February 2017 conclusion that the December 1999 rating decision was not the product of CUE and to conclude that the Veteran’s 1999 informal request for a TDIU has remained pending and unadjudicated since that time. The Court thus reversed that the Board’s February 2017 decision and remanded the matter to the Board for the Board “to instruct the RO to adjudicate the [Veteran’s] 1999 TDIU request.” Given the explicit directive of the Court, the Board finds that the matter on appeal must be remanded for the agency of original jurisdiction (AOJ) to adjudicate, in the first instance the Veteran’s 1999 informal request for a TDIU, which has remained pending since prior to the December 1999 rating decision. Further, although the issue on appeal previously encompassed the question of whether there was CUE in December 1999 and/or June 2007 rating decision, given the Court’s finding that a request for a TDIU has remained pending since prior to the December 1999 rating decision, then there is no decision on that claim to revise on the basis of CUE. See Roberson, 251 F.3d 1378, 1384-85 (Fed. Cir. 2001). Accordingly, the Board has recharacterized the remaining matter on appeal accordingly, as reflected above. In addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the claims on appeal. The matter is hereby REMANDED for the following action: After completing any notification and/or development action warranted, adjudicate the earlier effective date claim on appeal, considering all pertinent evidence (to include all evidence added to the electronic claims file since the last adjudication) and legal authority. 1. Adjudication of the claim of entitlement to an effective date earlier than January 12, 2007, for the award of a TDIU must include explicit adjudication of the Veteran’s informal request for a TDIU, which the Court found has remained pending since prior to the December 1999 rating decision. JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Neilson, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.