Citation Nr: 1804072	
Decision Date: 01/23/18    Archive Date: 01/31/18

DOCKET NO.  16-45 738	)	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 (TDIU).


REPRESENTATION

Appellant represented by:	Stacey Clark, Attorney


ATTORNEY FOR THE BOARD

D. Barrett, Associate Counsel



INTRODUCTION

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).

The Veteran served on active duty from April 1969 to March 1971.

This matter come before the Board of Veterans' Appeals (Board) on appeal from a May 2014 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which in pertinent part, denied the Veteran's claims of entitlement to increased ratings for diabetes mellitus type II with erectile dysfunction, right eye diabetic retinopathy, and bilateral peripheral neuropathy of the lower extremities and for left ear hearing loss.  

When this case was before the Board in November 2015 and October 2016, it was remanded for additional development.  

The October 2016 Board decision remanded claims for service connection for a left eye choroidal melanoma tumor, status post-left eye removal; a psychiatric disorder, and a right ear hearing loss disability; as well as claims for higher ratings for type II diabetes mellitus with erectile dysfunction, right eye diabetic retinopathy, and bilateral lower extremity peripheral neuropathy; and for left ear hearing loss for further development.  A review of the record indicates that the development for those 5 claims has not yet been completed and the issues have not yet been re-certified to the Board following the previously requested development.  Therefore, they will be the subject of a Board decision at a later time, after they are re-certified to the Board, if otherwise in order.

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.



REMAND

In a July 2017 statement, the Veteran's attorney raised the issue of TDIU in conjunction with the Veteran's claims for entitlement to increased ratings for his service-connected disabilities.  The attorney also asserted that the Veteran has nerve impairment of the bilateral upper extremities due to the service-connected diabetes, which is currently on appeal.  A TDIU claim is part of an increased rating claim when such claim is raised by the record.  Rice v. Shinseki, 22 Vet. App. 447 (2009). Accordingly, TDIU has been raised by the record. 

The claim for TDIU is inextricably intertwined with the pending service connection and increased rating claims that were remanded in October 2016, as discussed in the Introduction.  The Veteran would therefore be prejudiced if the Board were to decide the TDIU claim without prior adjudication by the AOJ.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the Veteran has been prejudiced thereby).  Adjudication of the TDIU claim must be deferred until the intertwined issues are decided.  See Harris v. Derwinski, 1 Vet. App. 180 (1991).  Accordingly, the claim for TDIU is remanded back to the AOJ for initial development and adjudication.  

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).  Expedited handling is requested.)

1.  Request that the Veteran submit a properly completed VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability.

2.  Following completion of the development noted in the October 2016 Remand, as well as any other appropriate development, adjudicate the TDIU claim.  If the benefit is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration.

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 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. §§ 5109B, 7112 (2012).



_________________________________________________
D. JOHNSON
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) (2017).