13-20 823
13-20 823
| Board of Vet. App. | Jun 15, 2017Background
- Veteran served on active duty from Sept. 2005 to May 2010 and appealed VA rating decisions concerning TBI and entitlement to TDIU.
- May–Aug 2015: Board remanded for development; July 2015 RO granted service connection for TBI with a noncompensable rating effective Aug 3, 2011; Veteran disagreed.
- Oct 2015 & Apr 2016: Board granted 50% for PTSD and remanded TBI and TDIU issues for further development; Veteran withdrew higher-rating claim for asthma.
- Aug 2016: RO awarded TDIU effective Jan 6, 2016; Veteran did not accept that effective date and appealed.
- After certification to the Board, VA obtained additional VA examinations (including an August 2016 TBI exam) that were not reviewed by the AOJ before decision and were not waived by the Veteran.
- Board remanded for AOJ review of the August 2016 VA exam and other pertinent evidence, and ordered readjudication of increased TBI rating and earlier TDIU effective date; TDIU claim deferred as inextricably intertwined with TBI rating.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to an initial compensable rating for TBI | TBI warrants a compensable rating based on VA examinations and reported symptoms | RO assigned a noncompensable rating; additional VA exam evidence wasn’t considered previously | Remanded to AOJ to review August 2016 VA TBI exam and readjudicate the increased-rating claim |
| Entitlement to an effective date earlier than Jan 6, 2016 for TDIU | TDIU entitlement (and earlier effective date) may be supported if TBI rating is increased earlier | RO awarded TDIU effective Jan 6, 2016; AOJ must reassess if TBI rating changes affect effective date | Deferred and remanded because TDIU is inextricably intertwined with the TBI rating; AOJ to readjudicate after reviewing new evidence |
Key Cases Cited
- Manlincon v. West, 12 Vet. App. 238 (1999) (SOC issuance and escrowing of claims procedure)
- A.B. v. Brown, 6 Vet. App. 35 (1993) (appeal remains when veteran disagrees with effective date of award)
- Harris v. Derwinski, 1 Vet. App. 180 (1991) (definition of "inextricably intertwined" issues)
- Kutscherousky v. West, 12 Vet. App. 369 (1999) (veteran’s right to submit additional evidence after remand)