Citation Nr: 18140221 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 10-08 307A DATE: October 2, 2018 REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) prior to September 15, 2017, is remanded. REASONS FOR REMAND The Veteran had active service from December 1964 to September 1973. As an initial matter, the Board notes that in a July 2018 rating decision, the RO granted entitlement to a 100 percent rating for the Veteran’s service-connected posttraumatic stress disorder (PTSD), effective September 15, 2017. As such, the issue of entitlement to TDIU for the purpose of meeting the criteria for entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114(s) is moot for the period from September 15, 2017. Cf. Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); see also 38 U.S.C. § 1114(s) (2012). In addition, the Board notes that a July 2018 Supplemental Statement of the Case (SSOC) included the issue of entitlement to a rating in excess of 50 percent for PTSD prior to September 15, 2017. In addition, the body of the SSOC listed the issues of entitlement to increased ratings for tinnitus and corneal scarring with residuals of right eye injury. Each of these issues included the modifier “(TDIU)” and, in context, it is clear that the RO included these “issues” for the sole purpose of determining whether an increased rating was warranted for each of the Veteran’s service-connected disabilities such that he could meet the schedular criteria for a TDIU award for the period prior to September 15, 2017, and not as separate issues that were in appellate status. The Board recognizes that the August 2018 letter from the Veteran’s attorney representative included the three increased rating issues as being in appellate status. However, the September 2018 VA Form 8, “Certification of Appeal,” did not certify the above increased rating issues to the Board. Moreover, the Board can find no basis for considering the issues to be in appellate status. The increased rating claim for PTSD was finally adjudicated in a September 2014 Board determination. A February 2014 rating decision (pursuant to a prior Board decision) granted entitlement to service connection for corneal scarring with residuals, right eye injury, and assigned a noncompensable rating effective January 9, 2007. The Veteran did not timely submit a notice of disagreement or otherwise disagree with that determination within the time frame proscribed and that rating decision is final. Entitlement to service connection for tinnitus was granted in a June 2010 rating decision and a 10 percent rating assigned effective June 18, 2010. The Veteran did not timely submit a notice of disagreement or otherwise disagree with that determination within the time frame proscribed and that rating decision is final. The Board recognizes that the issue of entitlement to TDIU can be considered part of an increased rating claim under the Court’s holding in Rice v. Shinseki, 22 Vet. App. 447, 453-4 (2009); however, there is nothing to support a finding that the tenet works in the reverse (that is, a claim for TDIU does not include a claim for increased rating(s)). The facts of this case are readily distinguished from the Court’s holding in Percy v. Shinseki, 23 Vet. App. 37 (2009) because in this appeal the appellant was not wrongly misled into believing that he had perfected an appeal to the Board. The Board finds that the Veteran has not perfected an appeal with respect to increased rating claims for PTSD, tinnitus, or corneal scar as required pursuant to 38 C.F.R. § 20.1103 and, therefore, these issues are not on appeal. To the extent that the Veteran would like to appeal the issue of entitlement to an increased rating for PTSD prior to September 15, 2017, raised in the July 2018 rating decision, the Board encourages him to submit a VA Form 21-0958, “Notice of Disagreement,” as directed with the material provided with the July 2018 rating decision. Should the Veteran desire to file claims for increased ratings for tinnitus and/or corneal scar, he is encouraged to do so. 1. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to September 15, 2017 is remanded. The prior March 2016 Board determination remanded the claim because the TDIU issue was inextricably intertwined with claims that were referred to the RO in that determination. Specifically, the Board referred the issues of whether new and material evidence has been received in order to reopen claims of entitlement to service connection for joints affected by arthritis, to include as secondary to service-connected PTSD. The TDIU issue was deferred pending adjudication of the new and material claims because a decision on the new and material evidence issues would have a “significant impact” on a veteran’s claim for the TDIU issue. In a subsequent August 2017 rating decision, the RO denied claims for entitlement to service connection for “Precancers,” bilateral knee arthritis, back arthritis, bilateral ankle arthritis, bilateral shoulder arthritis, erectile dysfunction, hypertension, and skin irritations, as well as finding that new and material evidence had not been submitted sufficient to reopen a claim for entitlement to service connection for a bilateral hearing loss disability. In September 2017, the Veteran submitted a timely notice of disagreement as to each of these issues. At this time, the RO has not adjudicated the claims in a Statement of the Case (SOC). As at the time of the March 2016 Board determination, as there are pending claims that, if granted, would have a significant impact on the Veteran’s TDIU claim, the TDIU claim again must be remanded pending final adjudication of the new and material and service connection claims. The matter is REMANDED for the following action: 1. Following any development deemed necessary for the claims of entitlement to service connection for “Precancers,” bilateral knee arthritis, back arthritis, bilateral ankle arthritis, bilateral shoulder arthritis, erectile dysfunction, hypertension, and skin irritations, as well as whether new and material evidence has been submitted sufficient to reopen a claim for entitlement to service connection for a bilateral hearing loss disability, issue the Veteran a Statement of the Case (SOC) addressing those issues. Thereafter, if the Veteran’s combined disability ratings meet the schedular criteria for TDIU for any period prior to September 15, 2017, the Veteran’s claim for TDIU should be readjudicated based on the entirety of the evidence. 2. If the Veteran’s claim for TDIU is not granted to his satisfaction, the Agency of Original Jurisdiction (AOJ) should issue an appropriate SSOC and afford the Veteran and his representative the opportunity to respond. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel