Citation Nr: 18154345 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 10-27 560 DATE: November 29, 2018 REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability for the period prior to June 27, 2017 is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1970 to April 1978. In July 2012, the Veteran had a personal hearing before then Veterans Law Judge (VLJ) Mason. Since that time, VLJ Mason has been sworn in as the Board’s Chairman. Pursuant to 38 U.S.C. 7102(b), a proceeding may not be assigned to the Chairman as an individual member. However, the Chairman may participate in a proceeding, such as this, which has been assigned to a panel. In a September 2018 letter, the appellant was informed of the option to participate in additional hearings before the Board members assigned to participate in the panel to decide the appeal. The letter indicated that if the Veteran did not respond within 30 days, the Board would assume that the Veteran did not want another hearing and would proceed accordingly. The Veteran has not responded to the September 2018 letter. In a September 2017 decision, the Board determined that a TDIU was warranted effective June 27, 2017. The only issue under the Board’s jurisdiction was entitlement to increased rating for the lumbar spine disability, which the Board remanded for additional development; the TDIU was adjudicated pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran appealed the effective date assigned to the award of the TDIU decision to the U.S. Court of Appeals for Veterans Claims (Court), and in May 2018, the matter was vacated and remanded to the Board pursuant to a Joint Motion for Partial Remand. The issue of entitlement to a TDIU prior to June 27, 2017, is intertwined with, or part of pursuant to Rice, the issues of increased rating for the lumbar spine disability that are currently on remand status. Moreover, review of the record indicates that additional development specific to the issue of entitlement to a TDIU would benefit the record. Notably, the record indicates that the Veteran worked until at least March 12, 2014, based on histories provided in conjunction with VA examination and treatment. The Board finds additional information is needed to determine the Veteran’s occupational income during the period of the claim on appeal. The Joint Motion for Partial Remand raised the issue of entitlement to special monthly compensation at the housebound level. Notably, an October 2017 rating decision granted special monthly compensation based on housebound criteria (SMC) effective June 27, 2017. The Board finds consideration of entitlement to SMC prior to June 27, 2017, is part of the claims for increased rating for the lumbar spine disability which are currently in remand status, and it is not a distinct issue before the Board at this time. As such, the Board will take no action on the question of entitlement to special monthly compensation at this time. The matter is REMANDED for the following action: 1. Provide the Veteran a VA form 21-8940. Instruct him that the form must be filled out with all employment prior to June 27, 2017. 2. Thereafter, readjudicate the matter of entitlement to a TDIU prior to June 27, 2017. If possible, readjudicate the matter in conjunction with the claims for increased rating for the lumbar spine disability currently in remand status. If the benefit sought on appeal remains denied, the Veteran should be provided a supplemental statement of the case (SSOC). CHERYL L. MASON Veterans Law Judge Board of Veterans’ Appeals NATHAN KROES Veterans Law Judge Board of Veterans’ Appeals T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Snyder, counsel