Citation Nr: 1629181 Decision Date: 07/21/16 Archive Date: 08/01/16 DOCKET NO. 10-20 436 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Gregory D. Keenum, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Lech, Associate Counsel INTRODUCTION The Veteran had active duty in the Army from June 1998 to October 1998, and from August 2001 to April 2002. This matter is before the Board of Veterans' Appeals (Board) on appeal of a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Veteran testified before the undersigned in March 2011. A transcript of that hearing is of record. In July 2011, the Board denied the claim of TDIU. The Veteran appealed to the United States Court of Appeals for Veterans Claims (the Court). In February 2012, the Court ordered the granting of a Joint Motion for Remand (JMR), vacating the Board decision and remanding the matter for further proceedings consistent with the JMR. The Board remanded the claim in October 2012. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). REMAND The Board finds that further development is necessary before the issue of TDIU can be adjudicated. The Veteran has another appeal before the AOJ which concerns four different claims, including a service connection claim. The adjudication of those claims might have a direct impact on the issue of TDIU. As such, the Board cannot decide the issue of TDIU before the claims currently before the RO are fully adjudicated. In that regard, it is noted that the claims folder contains a recently conducted examination of the service connected disabilities. This matter and the other matters need additional adjudication in view of this action. Additionally, it is noted that June and November 2013 rating actions deny an issue of service connection for a cervical spine disorder. Yet the code sheet for both ratings list the cervical spinal disorder as both service and non-service connected. It does not appear that the disorder was considered in the combined rating assigned, by this matter should be addressed while in remand development. The issue of TDIU is inextricably intertwined with the increased rating claim on appeal, and the Board will defer adjudication of the TDIU claim until the adjudication of the other claims has been completed. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following action: 1. Readjudicate the issues subject to the most recent statement of the case in view of recently added medical evidence. Full adjudication of these claims should be conducted, and it is noted that the matter of service connection for a cervical spinal disorder should be listed as either service connected or non-service connected with a full explanation. 2. Determine whether the Veteran meets the schedular criteria for a TDIU in light of the decision reached above. All of the Veteran's service-connected disabilities, as well as his employment history, educational and vocational attainment, and all other factors having a bearing on his employability (or lack thereof) should be considered. 3. If such action does not resolve the claim for entitlement to a TDIU, a Supplemental Statement of the Case should be issued to the Veteran and his representative. An appropriate period of time should be allowed for response. Thereafter, this claim should be returned to this Board for further appellate review, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters 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 2014). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).