Citation Nr: 18154525 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 10-30 171 DATE: November 30, 2018 REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1969 to April 1973. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office. In this regard, the Board assumed jurisdiction over the claim of entitlement to a TDIU pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). In January 2012, the Veteran testified at a Board hearing before a Veterans Law Judge. A transcript of the hearing is associated with the record. In February 2016, he was advised that the Veterans Law Judge who presided over his hearing was unavailable to participate in a decision in his appeal and was provided with an opportunity to testify at another Board hearing. However, he did not elect to do so. In April 2013, the Board remanded the claims of entitlement to an initial compensable rating for retroperitoneal fibrosis and a TDIU for additional development. Thereafter, in June 2016, the Board granted initial rating of 10 percent, but no higher, prior to September 4, 2013, and denied a rating in excess of 30 percent thereafter for retroperitoneal fibrosis, and remanded the claim of entitlement to a TDIU for additional development. At such time, the Board also erroneously remanded the issue of entitlement to an effective date prior to September 4, 2013, for the award of a 30 percent rating for retroperitoneal fibrosis for the issuance of a statement of the case as such matter had been finally adjudicated in the same Board decision (by virtue of the fact that an initial rating in excess of 10 percent prior to September 4, 2013, for such disability was denied). See Harris v. Nicholson, 19 Vet. App. 345, 348 (2005); Smith v. Brown, 35 F.3d 1516, 1526 (Fed. Cir. 1994) (construction of regulation to permit review by RO of a Board decision to be avoided); Donovan v. Gober, 10 Vet. App. 404, 409 (1997) (“an RO must not be placed in the anomalous position of reviewing the decision of the [Board], a superior tribunal”). Nonetheless, the Agency of Original Jurisdiction (AOJ) issued a statement of the case in July 2018 and a supplemental statement of the case in September 2018. However, the Veteran never perfected his appeal of such issue by filing a timely substantive appeal. Therefore, it is not properly before the Board. The Veteran’s claim of entitlement to a TDIU now returns for further appellate review. The Board notes that a September 2018 rating decision denied service connection for gastroesophageal reflux disease (GERD) and sleep apnea, and the Veteran entered a notice of disagreement as to such denials later that month. Although a statement of the case has not yet been issued, according to the Veterans Appeals Control and Locator System, the claims are still being developed by the AOJ. As a result, the Board declines jurisdiction over these issues until such time as an appeal to the Board is perfected. The Board further observes that, following the issuance of the most recent supplemental statement of the case in July 2018, additional evidence has been associated with the record. However, as his claim is being remanded, the AOJ will have an opportunity to review the newly received evidence such that no prejudice results to the Veteran in the Board considering such evidence for the limited purpose of issuing a comprehensive and thorough remand. Entitlement to a TDIU. In June 2016, the Board remanded the Veteran’s claim of entitlement to a TDIU in order to refer the matter to the Director of Compensation Service for consideration of such on an extra-schedular basis pursuant to 38 C.F.R. § 4.16(b) as he did not meet the schedular threshold for a TDIU under 38 C.F.R. § 4.16(a). The AOJ completed the referral to the Director in November 2017 and a response was received in December 2017. In this regard, the Director determined that the Veteran’s service-connected disabilities of retroperitoneal fibrosis and tinnitus did not render him unable to secure or follow a substantially gainful occupation. However, since such time, the Veteran has filed claims for service connection for GERD and sleep apnea. As noted in the Introduction, while such were denied in a September 2018 rating decision, the Veteran has entered a notice of disagreement as to such denials. Consequently, the claims remain pending. Therefore, as the Veteran’s claim for a TDIU is inextricably intertwined with such pending claims, adjudication of such matter must be deferred pending the outcome of his claims for service connection for GERD and sleep apnea. Harris v. Derwinski, 1 Vet. App. 180 (1991); Parker v. Brown, 7 Vet. App. 116 (1994). The matter is REMANDED for the following action: Following the issuance of a statement of the case addressing the issues of entitlement to service connection for GERD and sleep apnea, readjudicate the Veteran’s claim for a TDIU. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Brennae L. Brooks, Associate Counsel