Citation Nr: 20022568 Decision Date: 04/10/20 Archive Date: 04/01/20 DOCKET NO. 19-33 561 DATE: April 10, 2020 ORDER Entitlement to an earlier effective date for entitlement to a total disability individual unemployability (TDIU) prior to March 1, 2010 is dismissed. REMANDED Entitlement to a rating in excess to 10 percent for right great toe fracture is remanded. FINDINGS OF FACT 1. A January 2018 rating decision implemented the final December 2017 Board decision, which granted entitlement to a TDIU from March 1, 2010. 2. The Veteran cannot challenge the merits of the final December 2017 Board decision by expressing disagreement with the Regional Office's (RO) implementing rating decision. CONCLUSION OF LAW The claim for an earlier effective date prior to March 1, 2010 for entitlement to TDIU is dismissed. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1100 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran performed active duty service from November 1975 to November 1979, January 1980 to March 1984, March 1984 to March 1988, and October 1989 to January 1993. These matters come before the Board of Veterans’ Appeals (Board) from a rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to Individual unemployability prior to March 1, 2010 The Veteran seeks an effective date prior to March 1, 2010 for entitlement to a total disability rating based upon individual unemployability (TDIU). The Veteran contends that he should be granted total individual unemployment prior to March 1, 2010. In argument submitted in March 2018, the Veteran’s representative noted that the Veteran has met the schedular criteria for TDIU from October 31, 2007, and he had a favorable disability determination from the Social Security Administration (SSA) in November 2007. A December 2017 Board decision granted entitlement to TDIU, effective from March 1, 2010. The Board decision stated, “The Board determines based on the severity of the Veteran’s service-connected disabilities, to include his major depressive disorder and back disability, and resolving reasonable doubt in his favor, entitlement to a TDIU is warranted from March 1, 2010.” Generally, all questions in a matter subject to decision by VA shall be subject to one review on appeal and final decisions on such appeals shall be made by the Board. See 38 U.S.C. § 7104 (a). All Board decisions will be stamped with the date of mailing on the face of the decision and, absent exceptions inapplicable in this case, all Board decisions are final on the date stamped on the face of the decision. See 38 C.F.R. § 20.1100 (a). The December 2017 Board decision was date stamped December 28, 2017 on the face of the decision, and the decision also included two pages that explained the rights to appeal the Board decision. Following the December 2017 Board decision, the Veteran (or his representative) did not file a notice of appeal (NOA) with the United States Court of Appeals for Veterans Claims (Court) within the specified time frame. See U.S.C. § 7266(a). As such, the December 2017 Board decision, which granted entitlement to a TDIU effective from March 1, 2010, is final. In a January 2018 rating decision, the RO implemented the Board decision and assigning an effective date of March 1, 2010 for entitlement to a TDIU. The rating decision noted that the effective date of March 1, 2010 was granted in the December 2017 Board decision. In March 2018, the Veteran’s representative submitted a Notice of Disagreement with the effective date for TDIU assigned in the January 2018 rating decision. As indicted above, the Veteran asserts that an earlier effective date is warranted because he met the schedular criteria for TDIU prior to March 1, 2010 and received a favorable determination from Social Security based on his disabilities. A veteran may not challenge the merits of a Board decision by expressing disagreement with the RO’s implementing rating decision. See Harris v. Nicholson, 19 Vet. App. 345, 348 (2005); see also Smith v. Brown, 35 F.3d 1516, 1526 (Fed. Cir. 1994) (construction of regulation to permit review by RO of a Board decision to be avoided); Donovan v. Gober, 10 Vet. App. 404, 409 (1997) ("a RO must not be placed in the anomalous position of reviewing the decision of the [Board], a superior tribunal"). While the Veteran attempted to file a NOD in March 2018 as to effective date for TDIU assigned in the the January 2018 rating decision, that rating decision was solely implementing the December 2017 final Board decision. The Veteran cannot challenge the merits of the December 2017 Board decision by expressing disagreement with the AOJ's implementing decision. Accordingly, the claim for an earlier effective date prior to March 1, 2010 for entitlement to a TDIU is dismissed. 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. REASONS FOR REMAND 1. Right great toe fracture The Veteran contends his right great toe fracture has worsened. The Veteran has been service-connected for his right great toe fracture since January 1993. A 10 percent rating has been in effect since August 2016. The Veteran last VA examination for his right great toe fracture was in December 2016. Since the last examination, treatment records reveal the Veteran has expressing pain, and discomfort in his right great toe. Given the length of time and complaints of pain in his right great toe, a VA examination is needed to determine the severity of the Veteran’s right great toe fracture. The matters are REMANDED for the following action:2010 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his right great toe. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran’s disabilities under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. A complete rationale must be provided for any opinion offered. If the requested opinion cannot be rendered without resorting to speculation, the clinician must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. CATHERINE CYKOWSKI Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Anthony L. Hines Associate Attorney 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.