Citation Nr: 1805054	
Decision Date: 01/25/18    Archive Date: 02/05/18

DOCKET NO.  11 00-006	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUE

Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

R.M.K., Counsel

INTRODUCTION

The Veteran served on active duty from August 1968 to November 1971. 

This case comes before the Board of Veterans' Appeals (Board) on appeal of an August 2011 rating decision that denied service connection for a TDIU.

In April 2017 the Veteran testified at a travel Board hearing before the undersigned. A transcript is associated with the record. 

When this case was previously before the Board in July 2017, it was remanded for additional evidentiary development.  It has since been returned to the Board for further appellate action.

This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems.  Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record.

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


REMAND

Although the Board regrets further delay, remand is required.  The Court of Appeals for Veterans Claims has held that all issues inextricably intertwined with an issue certified for appeal are to be identified and developed prior to appellate review.  Harris v. Derwinski, 1 Vet. App. 180 (1991).  Here, following the Board's July 2017 remand, entitlement to posttraumatic stress disorder (PTSD) was granted in an October 2017 rating decision with an evaluation of 10 percent, effective November 30, 2005.  Subsequently in January 2018, the Veteran submitted a new service connection claim for traumatic brain injury (TBI), secondary to the PTSD, and increased rating claims for the PTSD and service-connected bilateral hearing loss.  The Veteran's newly filed claims may significantly affect his claim for TDIU, as factors bearing on employment may arise during the development of the claims, and any subsequent disability ratings would bear directly on the rating requirements for a schedular TDIU.  Thus, the TDIU claim is inextricably intertwined with these new claims.  Therefore, the TDIU claim must be remanded to the AOJ in accordance with the holding in Harris to allow the AOJ to fully develop and adjudicate any outstanding claims.

Accordingly, the case is REMANDED for the following action:

1.  Review the electronic claims file and adjudicate the outstanding issues of entitlement to TBI, secondary to PTSD, and the increased rating claims for the PTSD and bilateral hearing loss.  All appropriate procedures should then be followed.

2.  Following the above, review the expanded record and accomplish any other development deemed necessary with regards to the Veteran's claim for TDIU.

3.  Readjudicate the Veteran's claim for TDIU based on the entirety of the evidence.  If the benefit sought on appeal is not granted to the appellant's satisfaction, he and his representative should be provided with a supplemental statement of the case.  An appropriate period of time should be allowed for response.

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 2014).


_________________________________________________
K. J. ALIBRANDO
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).