Citation Nr: 1339841 Decision Date: 12/03/13 Archive Date: 12/18/13 DOCKET NO. 98-11 660 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to a total disability rating based upon individual unemployability (TDIU). (The issues involving entitlement to increased ratings for right and left knee disabilities as well as left knee scars are addressed in a separate decision under the same docket number). ATTORNEY FOR THE BOARD T. Mainelli, Counsel INTRODUCTION The Veteran's case before the Board of Veterans' Appeals (Board) on appeal comes from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Veteran has claims pending appellate review by the Board regarding issues for increased ratings for right and left knee disabilities as well as left knee scars. More recently, the Veteran has claimed that his bilateral knee disability has rendered him unable to secure and obtain substantially gainful employment. This assertion reasonably raises the issue of entitlement to TDIU, see Roberson v. Principi, 251 F.3d 1378, 1384 (2001), which is deemed a component of the increased rating claims on appeal - rather than a separate claim. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). However, by letter dated July 8, 2013, the Veteran's attorney explicitly informed VA that he was not representing the Veteran for the TDIU claim. To avoid any potential impropriety or privacy disclosures, the Board must address the TDIU issue in a separate decision from the increased rating claims. The same docket number as the increased rating claims will be used to ensure claims adjudication priority. A review of the Virtual VA electronic records storage system reveals additional documents which are not associated with the paper claims folder. The RO has reviewed these records in its adjudications. In the interests of judicial economy, the appeal is REMANDED to the RO rather than the Appeals Management Center (AMC) in Washington, DC, as the Veteran's increased rating claims (addressed in a separate decision) must be remanded to the RO. VA will notify the Veteran if further action is required. REMAND As indicated above, the Veteran has raised the issue of entitlement to TDIU. His attorney representing him on other claims has specifically instructed VA that he will not represent the Veteran for the TDIU claim. On due process grounds, the Board remands this issue to notify the Veteran that he is not represented on the TDIU issue to allow him to seek representation, if he so desires. On remand, the record reflects that the Veteran has worked for substantial portions of the appeal period. In order to properly evaluate this issue, the Veteran should once again be asked to complete and submit a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Individual Unemployability). The Veteran is hereby advised that a failure on his part to complete and return a VA Form 21-8940 could result in a denial of his claim. See generally Dusek v. Derwinski, 2 Vet. App. 519, 522 (1992) (quoting Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (claimant cannot wait passively for VA assistance in circumstances where claimant may or should have information in obtaining the putative evidence). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be notified that Attorney Krasnegor is not representing him on his TDIU claim, and that the Veteran may obtain representation on this issue prior to any further appellate review. 2. The Veteran should asked to complete and submit a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Individual Unemployability). 3. Upon completion of the above, as well as all remand directives pertaining to the claims for increased ratings for right and left knee disabilities as well as left knee scars (addressed in a separate decision under a separate docket number), the RO should readjudicate the issue of entitlement to TDIU. If the benefit sought on appeal is not granted in full, the RO should furnish the Veteran a supplemental statement of the case (SSOC) and allow the appropriate time for response. The RO must observe that, at the current time, the Veteran is not represented on this issue and that an SSOC can only be furnished to a representative properly designated under VA regulations. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. 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). _________________________________________________ MARJORIE A. AUER 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) (2013).