Citation Nr: 1332425 Decision Date: 10/18/13 Archive Date: 10/24/13 DOCKET NO. 05-37 812 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran had active service from September 1963 to September 1965. This case comes before the Board of Veterans Appeals (Board) on appeal from a March 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) located in Nashville, Tennessee. In that decision, the RO confirmed and continued a previously assigned 30 percent rating for the service-connected pes planus. The Veteran disagreed with that determination, and this appeal ensued. This claim was previously remanded to the RO via the Appeals Management Center (AMC) by the Board in August 2008. In September 2010, the Board granted an increased rating to 50 percent for the service-connected pes planus. The 50 percent rating is the maximum schedular rating assignable for pes planus. In the September 2010 decision, the Board explained that because the Veteran had an increased rating claim pending at the time he reported that he was unable to continue working due to his service-connected disabilities, the issue of entitlement to TDIU was raised by the record, and is considered part and parcel of the increased rating claim. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). The issue of entitlement to a TDIU was remanded to AMC by the Board in September 2010 and February 2012 for additional evidentiary development. In a March 2013 decision, the Board determined that there was competent evidence of record that the Veteran may be unemployable due to his service-connected pes planus. Accordingly, the Board remanded and referred the issue to the Director of Compensation and Pension for consideration of a TDIU on an extraschedular basis. The issues of entitlement to service connection for diabetes mellitus and chronic pulmonary insufficiency were raised by the record in December 2011. In this statement, the Veteran appears to be seeking an increased disability rating for chronic pulmonary insufficiency. However, as this issue has been previously denied, this statement should be treated as a request to reopen a previously denied claim. In the March 2013 decision, the Board noted that these issues had not yet been adjudicated by the Agency of Original Jurisdiction (AOJ). Unfortunately, since the March 2013 decision, these issues have still not been adjudicated by the AOJ. Therefore, the issue of entitlement to service connection for diabetes mellitus and the issue of whether new and material evidence has been submitted sufficient to reopen the claim for service connection for chronic pulmonary insufficiency have been raised by the record, but have not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over them, and they are again referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a) (2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND As noted above, in the March 2013 decision, the Board remanded the Veteran's claim for entitlement to TDIU on an extraschedular basis as a result of service-connected pes planus for referral to the Director of the Compensation and Pension Service in accordance with 38 C.F.R. § 4.16(b) for consideration of whether this benefit is warranted on an extra-schedular basis. Accordingly, per the remand instructions, the Director of the Compensation and Pension Service provided an opinion on this issue in a June 2013 correspondence. However, a review of the record reveals that additional development is necessary prior to adjudicating the claim for a TDIU, to include on an extraschedular basis. Specifically, the RO must adjudicate the referred claims of entitlement to service connection for diabetes mellitus and whether new and material evidence has been submitted sufficient to reopen the claim for service connection for chronic pulmonary insufficiency. If either of these claims is granted, they may have a significant impact on the Veteran's claim for TDIU. The claim for TDIU is inextricably intertwined with the referred claim and should be considered on both a schedular and extraschedular basis after a decision is rendered on the referred claims. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a Veteran's claim for the second issue). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). Expedited handling is requested.) 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disabilities on appeal. After the Veteran has signed the appropriate releases, those records must be obtained and associated with the claims folder. Appropriate efforts must be made to obtain all available VA treatment records. All attempts to procure records must be documented in the file. If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect must be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. After undertaking any other development deemed essential in addition to that specified above, the RO must FIRST adjudicate the claims of entitlement to service connection for diabetes mellitus and whether new and material evidence has been submitted sufficient to reopen the claim for service connection for chronic pulmonary insufficiency, and THEN readjudicate the claim for TDIU with consideration of both a schedular basis (38 C.F.R. § 4.16(a)) and extraschedular basis (38 C.F.R. § 4.16(b)). 3. If the TDIU claim remains denied, the Veteran must be provided a Supplemental Statement of the Case (SSOC). The SSOC must contain notice of all relevant actions taken on the claims for benefits. An appropriate period of time must be allowed for response. The Veteran has the right to submit additional evidence and argument on this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).