Citation Nr: 18146468 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 13-07 393 DATE: October 31, 2018 REMANDED Entitlement to an initial disability rating in excess of 10 percent for service-connected tinnitus is remanded. Entitlement to an initial disability rating in excess of 50 percent for service-connected chronic adjustment disorder with depressed mood is remanded. Entitlement to an effective date earlier than January 20, 2017 for the award of service connection for tinnitus is remanded. Entitlement to an effective date earlier than January 17, 2017 for the award of service connection for chronic adjustment disorder with depressed mood is remanded. Entitlement to an effective date earlier than January 17, 2017 for the grant of basic eligibility to Dependents’ Educational Assistance (DEA) benefits is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to January 17, 2017 is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1954 to January 1958. These matters come before the Board of Veterans’ Appeals (Board) on appeal from September 2011 and August 2017 rating decisions issued by a Regional Office (RO) of the United States Department of Veterans Affairs. In September 2014, the Veteran testified via videoconference at a hearing before the undersigned Veterans Law Judge on the issue of entitlement to a TDIU. A transcript of the hearing has been associated with the electronic claims file. In May 2018 and September 2018, Veterans Law Judges, other than the undersigned, issued separate Board decisions remanding the claims of entitlement to service connection for a lumbar spine disability; entitlement to an initial compensable rating for asbestosis; and entitlement to service connection for a cervical spine disability for further evidentiary development. These matters remain in remand status, and are at the RO undergoing additional evidentiary development as requested by the Board’s May 2018 and September 2018 decisions. Consequently, as the RO has not yet completed the directed actions on these claims, they are not before the Board for appellate consideration, and may be the subject of future Board decisions, as appropriate. 1. Claims adjudicated in the August 26, 2017 rating decision In an August 26, 2017 rating decision, the RO: (1) granted service connection for tinnitus, and assigned an evaluation of 10 percent effective January 20, 2017; (2) granted service connection for chronic adjustment disorder with depressed mood, and assigned an evaluation of 50 percent effective January 17, 2017; (3) granted entitlement to a TDIU effective January 17, 2017; and (4) granted basic eligibility to DEA benefits effective January 17, 2017. In September 2017, the Veteran filed a timely notice of disagreement (NOD) challenging the effective date and the disability rating assigned to his service-connected tinnitus and chronic adjustment disorder with depressed mood. In this NOD, the Veteran also challenged the effective date assigned to his award of a TDIU and his basic eligibility to DEA benefits. A review of the appellate record establishes that the RO has not issued a Statement of the Case (SOC) in response to the pending September 2017 NOD. The Board notes that the issue of entitlement to an effective date earlier than January 17, 2017 for TDIU is essentially the same as the pending claim of entitlement to a TDIU prior to January 17, 2017, which is already in appellate status. Thus, these two claims shall be combined into one issue, and the RO is instructed not to take further action on the September 2017 NOD with respect to the claim for an earlier effective date for the award of a TDIU. As to the other claims addressed in the September 2017 NOD, they must be remanded for the RO for issuance of a SOC. See Manlincon v. West, 12 Vet. App 238, 240-241 (1999). 2. Entitlement to a TDIU prior to January 17, 2017 In a November 2014 decision, the Board denied entitlement to a TDIU. The Veteran perfected an appeal before the United States Court of Appeals for Veterans Claims (Court), which issued a memorandum decision in February 2016 vacating the November 2014 Board decision and remanding the matter of entitlement to a TDIU to VA for further consideration. This matter returned to the Board in December 2016, where a remand decision was issued requesting additional evidentiary and procedural development. The Board requested that the RO obtain updated VA treatment records; schedule a VA examination to assess the severity of the Veteran’s service-connected bilateral hearing loss; schedule a VA examination before an appropriate medical professional to evaluate the Veteran’s cognitive functioning and the impact of his bilateral hearing loss on his cognitive abilities; and refer the matter to the Director of Compensation Services for consideration of entitlement to a TDIU on an extraschedular basis. Review of the appellate record reflects that all remand directives requested by the Board’s December 2016 decision have been successfully completed. See Stegall v. West, 11 Vet. App. 268 (1998). Due to the RO’s evidentiary development, entitlement to a TDIU was granted effective January 17, 2017. The issue of entitlement to a TDIU prior to 17, 2017 remains in appellate status; however, a decision on the claim would be premature at this juncture. The Veteran’s claim of entitlement to a TDIU prior to January 17, 2017 is inextricably intertwined with the claims adjudicated in the August 26, 2017 rating decision and being remanded pursuant to Manlincon, 12 Vet. App. at 240-241, discussed supra. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (claims “are inextricably linked together” where a favorable decision on one “could have a significant impact” the other). For instance, an increased rating and/or an earlier effective date for the Veteran’s service-connected psychiatric disability or tinnitus may impact whether the Veteran satisfied the schedular TDIU criteria earlier than January 17, 2017. See 38 C.F.R. § 4.16(a). It is further observed that the service connection and increased rating claims remanded in the May 2018 and September 2018 Board decision may also impact whether the Veteran has satisfied the schedular TDIU criteria earlier than January 17, 2017. As such, the claim of entitlement to a TDIU prior to January 17, 2017 is inextricably intertwined with several pending claims, and must be adjudicated subsequent to the resolution of these claims. The matters are REMANDED for the following action: 1. The RO must furnish the Veteran with a SOC pertaining to the issues of an initial increased rating and earlier effective date for the award of service connection for tinnitus; an initial increased rating and earlier effective date for the award of service connection for chronic adjustment disorder with depressed mood; and entitlement to an earlier effective date for basic eligibility to DEA benefits. These claims should not be returned to the Board unless the Veteran perfects an appeal by filing a timely VA form 9/Substantive Appeal. 2. The claim of entitlement to a TDIU prior to January 17, 2017 must be held in abeyance pending the resolution of the claims remanded in the May 2018 and September 2018 Board decisions, as well as the claims set forth in the September 2017 NOD. Once all claims are resolved to the fullest extent possible, the RO is requested to readjudicate the claim of entitlement to a TDIU prior to January 17, 2017, in light of the complete appellate record. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Galante, Associate Counsel