Citation Nr: 18146009 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 93-14 409 DATE: October 30, 2018 REMANDED Entitlement to an initial compensable rating prior to March 13, 2007, for degenerative joint disease of the left hip, and in excess of 40 percent as of March 13, 2007 is remanded. Entitlement to an initial compensable rating prior to March 13, 2007, for degenerative joint disease of the right hip, and in excess of 40 percent as of March 13, 2007 is remanded. Entitlement to a rating in excess of 20 percent for left ankle polymyopathy prior to November 24, 1998, in excess of 30 percent from November 24, 1998, to July 25, 2002, and in excess of 30 percent as of January 31, 2003, is remanded. Entitlement to a rating in excess of 20 percent for right ankle polymyopathy prior to November 24, 1998, and in excess of 30 percent as of November 24, 1998 is remanded. Entitlement to a rating in excess of 10 percent for polymyopathy of the left hip prior to November 24, 1998, and in excess of 20 percent as of November 24, 1998 is remanded. Entitlement to a rating in excess of 10 percent for polymyopathy of the right hip prior to November 24, 1998, and in excess of 20 percent as of November 24, 1998 is remanded. Entitlement to an earlier effective date than November 24, 1998, for a total disability rating based on individual unemployability (TDIU) is remanded. (Additional issues, including apportionment issues and waiver of overpayment recovery, are addressed in separate decisions with the same docket number.) REASONS FOR REMAND The Veteran died in September 2017. The appellant is the Veteran’s child and has been accepted as the Veteran’s substitute for purposes of processing this appeal to completion. 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010. All of these issues, except for the claim for entitlement to an earlier effective date than November 24, 1998, for TDIU, come before the Board of Veterans’ Appeals by order of the United States Court of Appeals for Veterans Claims in November 2016, which vacated an August 2015 Board decision and remanded these matters for additional development. A July 1992 rating decision denied increased ratings for polymyopathy of the hips and ankles. Those issues were remanded by the Board in July 1995 and March 1998. Increased ratings were granted for left and right ankle polymyopathy disabilities in February 2005, with 30 percent ratings for each of the left and right ankle disabilities from November 24, 1998, a temporary total of 100 percent for the left ankle disability from July 26, 2002, and a 30 percent rating for the left ankle disability from January 31, 2003. In December 2006, the Board remanded the increased ratings claims for polymyopathy of the hips and ankles. A subsequent June 2008 rating decision granted increased 20 percent ratings for polymyopathy of left and right hips effective from November 24, 1998. The decision also established service connection for degenerative joint disease of the left and right hips with assigned initial 0 percent ratings and staged 40 percent ratings effective from March 13, 2007. The Veteran testified at a videoconference hearing before an undersigned Veterans Law Judge in September 2011 and at a personal hearing before another undersigned Veterans Law Judge in February 2013. Copies of the transcripts of those hearings are of record. A February 2012 remand included the claims for increased ratings for degenerative joint disease of the right and left hips, polymyopathy of the right and left hips and ankles, and depression and remanded the issue of entitlement to an earlier effective date for TDIU as inextricably intertwined with the other remanded issues. The Veteran presented testimony as to those increased rating and earlier effective date claims at the February 2013 Board hearing. As the Veterans Law Judge presiding over each hearing must participate in the final determination, these issues must be addressed in a Board decision by a panel of three judges. 38 C.F.R. § 20.707. In correspondence received in March 2015 the Veteran waived his right to have an additional hearing with the third member of the panel. 1. Entitlement to an initial compensable rating prior to March 13, 2007, for degenerative joint disease of the left hip, and in excess of 40 percent as of March 13, 2007 is remanded. 2. Entitlement to an initial compensable rating prior to March 13, 2007, for degenerative joint disease of the right hip, and in excess of 40 percent as of March 13, 2007 is remanded. 3. Entitlement to a rating in excess of 20 percent for left ankle polymyopathy prior to November 24, 1998, in excess of 30 percent from November 24, 1998, to July 25, 2002, and in excess of 30 percent as of January 31, 2003, is remanded. 4. Entitlement to a rating in excess of 20 percent for right ankle polymyopathy prior to November 24, 1998, and in excess of 30 percent as of November 24, 1998 is remanded. 5. Entitlement to a rating in excess of 10 percent for polymyopathy of the left hip prior to November 24, 1998, and in excess of 20 percent as of November 24, 1998 is remanded. 6. Entitlement to a rating in excess of 10 percent for polymyopathy of the right hip prior to November 24, 1998, and in excess of 20 percent as of November 24, 1998 is remanded. In a June 2018 letter, the Board informed the Appellant that additional evidence had been received that was not previously considered in a decision by the Agency of Original Jurisdiction. The Appellant was informed that he had a right to have the Agency of Original Jurisdiction review the evidence before the Board does, but if he wished, he may waive that right by submitting a waiver in writing. The Board informed the Appellant that if he did not respond within 45 days of the date of the notice letter, the Board “will remand your appeal to the AOJ for review.” The Appellant did not respond to the June 2018 letter. Therefore, in accordance with the June 2018 letter, the case must be remanded for initial review of the additional evidence. A supplemental statement of the case is needed. 38 C.F.R. § 19.31 (2017). 7. Entitlement to an earlier effective date than November 24, 1998, for a total disability rating based on individual unemployability (TDIU) is remanded. 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). The Board finds that the claim for earlier effective date for TDIU is inextricably intertwined with service connection, increased rating, and earlier effective date for service connection claims that have been remanded in another decision issued simultaneously. Therefore, the claim for earlier effective date for TDIU must be remanded pending resolution of those matters. The matters are REMANDED for the following action: After conducting requested development and readjudicating pending service connection, increased rating, and earlier effective date for service connection claims, readjudicate the issue on appeal for earlier effective date for TDIU. Specifically consider all evidence added to the appeal subsequent to the issuance of the last statements of the case and supplemental statements of the case. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Layton, Counsel