Citation Nr: 1706053	
Decision Date: 02/28/17    Archive Date: 03/03/17

DOCKET NO.  07-03 631	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUE

Entitlement to a total disability rating based on individual unemployability prior to September 21, 2009.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

M. Carsten, Counsel


INTRODUCTION

The Veteran served on active duty from October 1996 to August 2001.  

The issue of entitlement to a total disability rating based on individual unemployability was inferred by the Board of Veterans' Appeals (Board) in a January 2011 remand.  That remand instructed the RO to adjudicate the issue in the first instance.  Thereafter, the Veteran perfected an appeal to the claim of entitlement to a total disability evaluation based on individual unemployability due to service connected disorders, and in March 2015, the Board denied the claim.  

In June 2015, the Board vacated the March 2015 decision finding that the Veteran was denied due process of law.  Thereafter, in June 2015, the Board issued another decision denying entitlement to a total disability rating based on individual unemployability.  

The Veteran appealed the June 2015 decision to the United States Court of Appeals for Veterans Claims (Court).  By Order dated in March 2016, the Court granted a Joint Motion for Remand (joint motion).  

In June 2016, the Board remanded the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities for additional development.  

This is a paperless appeal and the Veterans Benefits Management System (VBMS) and Virtual VA folders have been reviewed.  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDINGS OF FACT

1.  In a September 2016 rating decision the Appeals Management Center granted entitlement to a total disability rating based on individual unemployability effective September 21, 2009; this is a complete grant of the benefit sought on appeal in the June 2016 Board remand.

2.  The issue of entitlement to a total disability rating based on individual unemployability prior to September 21, 2009 has not been perfected for appeal.  


CONCLUSION OF LAW

The Board lacks jurisdiction over the issue of entitlement to a total disability rating based on individual unemployability prior to June 21, 2009.  38 U.S.C.A. §§ 7104, 7105 (West 2014); 38 C.F.R. §§ 20.101, 20.200, 20.202 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

In a September 2016 rating decision the Appeals Management Center granted entitlement to a total disability rating based on individual unemployability from September 21, 2009.  The Appeals Management Center stated that this represented a partial grant of benefits sought on appeal for this issue and because the benefit was not awarded from an earlier date, the claim was still considered to be in appellate status.  

The statement by the Appeals Management Board is erroneous.  The issue remanded in June 2016 was entitlement to a total disability rating based on individual unemployability due to service-connected disabilities.  When the Appeals Management Center granted entitlement to that benefit, it resolved the issue in full.  The issue of entitlement an effective date prior to September 21, 2009, for a grant of entitlement to a total disability rating based on individual unemployability is a downstream issue that has not been perfected for appeal.  Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (A veteran must separately appeal for an earlier effective date since it is a "downstream" issue from the initial claim.)  As such, the Board does not have jurisdiction over this issue and it must be dismissed.  See 38 U.S.C.A. §§ 7104, 7105; 38 C.F.R. §§ 20.101, 20.200, 20.202. 

If the Veteran wishes to appeal the effective date assigned for the award of a total disability rating based on individual unemployability, he should begin by submitting a VA Form 21-0958, Notice of Disagreement, within one year following notification of the September 2016 rating decision, and thereafter file a timely substantive appeal following the issuance of a statement of the case. 


ORDER

The issue of entitlement to a total disability rating based on individual unemployability prior to September 21, 2009 is dismissed for lack of jurisdiction.



____________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs


