Citation Nr: 1805035	
Decision Date: 01/25/18    Archive Date: 02/05/18

DOCKET NO.  09-47 397	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

Entitlement to a total disability rating based on individual unemployability (TDIU). 


REPRESENTATION

Appellant represented by:	Harry Binder, Attorney


ATTORNEY FOR THE BOARD

Victoria A. Narducci, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Marine Corps from July 1985 to December 1989. 

This matter before the Board of Veterans' Appeals (Board) is on appeal from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma (Agency of Original Jurisdiction (AOJ)).

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action, on his part, is required.


REMAND

Regrettably, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the issues on appeal, in order to afford the Veteran every possible consideration. 

The Veteran claims unemployability due to his service-connected disabilities. The record reflects that, in December 2017, new evidence was added to the claims folder and the AOJ issued the Veteran a Statement of the Case (SOC) on the issue of entitlement to a higher initial rating for service-connected acquired psychiatric disorder. The adjudication of the issue of a higher initial rating for an acquired psychiatric disorder, which is not final for appellate purposes, could significantly change the adjudication of TDIU. See Parker v. Brown, 7 Vet. App. 116 (1994); 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). Consideration of the issue of a TDIU, therefore, will be deferred until the intertwined issues discussed above is either resolved or prepared for appellate consideration. See Harris, 1 Vet. App. at 183 (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together). At this time, the Board defers consideration of entitlement to TDIU to allow the claimant to pursue his appeal for a higher initial rating for an acquired psychiatric disorder, if he so desires.




Accordingly, the case is REMANDED for the following action:

	1. Associate with the Veteran's claims folder his records of 	treatment since April 10, 2017. 

	2. Thereafter, readjudicate the issue of entitlement to TDIU 	after the appeal status for the claim for a higher initial rating 	for an acquired psychiatric disorder is determined. If the 	benefit on appeal remains denied, a supplemental statement of 	the case must be provided to the Veteran and his 	representative. After an adequate opportunity to respond, the 	appeal must be returned to the Board for appellate review.

The Veteran 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. §§ 5109B, 7112 (2012).




_________________________________________________
T. MAINELLI
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C. § 7252 (2012), 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).