Citation Nr: 18156220 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 14-22 354 DATE: December 7, 2018 REMANDED Entitlement to a rating higher than 10 percent before January 25, 2013 and a rating higher than 60 percent beginning January 25, 2013 for the service-connected heart disability is remanded. Entitlement to a rating higher than 20 percent for the service-connected diabetes mellitus disability is remanded. For the rating period on appeal prior to November 22, 2016, entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1968 to April 1970. This matter comes on appeal before the Board of Veterans’ Appeals (Board) from January 2012 and February 2012 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran did not request a Board hearing regarding these increased rating claims. See June 2014 VA Form 9. 1. Entitlement to a rating higher than 10 percent before January 25, 2013 and entitlement to a rating higher than 60 percent beginning January 25, 2013 for the service-connected heart disability is remanded. The RO issued a statement of the case (SOC) in May 2014 addressing the claim for a rating higher than 10 percent before January 25, 2013 and a rating higher than 60 percent beginning January 25, 2013 for the service-connected heart disability. No supplemental statement (SSOC) of the case has been issued since May 2014. The Veteran raised the issue of a TDIU in his June 2014 substantive appeal and submitted a claim for a TDIU in November 2016. In response, the RO developed evidence for the TDIU claim, which necessarily included evidence relating to the service-connected heart disability. Specifically, after May 2014, the RO afforded the Veteran an additional January 2017 VA examination for the heart disability and associated additional pertinent VA treatment records with the claims file. The Board sent the Veteran a letter dated October 2018 informing him that new evidence had been developed since the most recent May 2014 SOC. The Veteran submitted an Additional Evidence Response Form in November 2018 and requested that his claim be remanded to the agency of original jurisdiction (AOJ) for further consideration. Thus, a remand is warranted to allow the AOJ to consider the additional evidence and issue a SSOC. 2. A rating higher than 20 percent for service-connected diabetes mellitus is remanded. As discussed above, in the context of the Veteran’s claim for a TDIU, additional development was conducted by the AOJ. Further, the Veteran also submitted an additional claim for peripheral neuropathy of the bilateral lower extremities as secondary to the service-connected diabetes mellitus during the pendency of this appeal. After the May 2014 SOC, the RO associated additional pertinent VA treatment records with the claims file regarding the severity of the diabetes mellitus and afforded the Veteran a February 2015 VA examination for the peripheral neuropathy of the bilateral extremities that discusses relevant evidence as to the severity of the diabetes mellitus. As noted above, the Veteran submitted an Additional Evidence Response Form in November 2018 indicating that he wished for the claim to be remanded to the AOJ for further consideration of the additional evidence developed by the AOJ. Thus, a remand is warranted. 3. Prior to November 22, 2016, entitlement a TDIU is remanded. By way of procedural background, the Veteran raised the issue of a total disability rating due to individual unemployability (TDIU) in his June 2014 VA Form 9. Subsequently, the Veteran submitted an Application for Increased Compensation Based on Unemployability, via a VA Form 21-8940, in November 2016. The RO, in a March 2017 rating decision, granted a TDIU effective November 22, 2016, and the Veteran was notified of this decision in April 2017. The Veteran did not file a notice of disagreement. In Rudd v. Nicholson, 20 Vet. App. 296 (2006), the Court held that once a rating decision which establishes an effective date becomes final, the only way that such a decision can be revised is if it contains clear and unmistakable error. The Court noted that any other result would vitiate the rule of finality. In other words, the Court has found that there are no freestanding claims for an earlier effective date. When such a freestanding claim is raised, the Court has held that such an appeal should be dismissed. Id. at 299-300. However, this case can be differentiated from Rudd. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court found that the issue of entitlement to a TDIU is “part and parcel” of an increased rating claim on appeal. In other words, when evidence of unemployability is submitted in the course of a claim for a higher rating for one or more service-connected disabilities, and there is evidence of unemployability pertaining to the service-connected disability or disabilities at issue, a claim for TDIU will be considered part and parcel of the increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the Veteran raised the issue of a TDIU in his June 2014 VA Form 9, which served as a substantive appeal to the increased rating claims for the service-connected heart disability and diabetes mellitus. Specifically, the Veteran indicated he could no longer work due to his service-connected heart disability. Thus, as the issue of entitlement to a TDIU was raised in the context of an increased rating claim, the effective date of the TDIU may be as early as the effective date applicable to the increased rating claims. See 38 C.F.R. § 3.400(o); see also Rice, 22 Vet. App. at 454. The issue of entitlement to a TDIU prior to November 22, 2016 is inextricably intertwined with the increased rating claims for the heart disability on appeal here, and potentially to the remaining increased rating claims being remanded. Inasmuch as the Board is remanding the increased rating claims herein, a remand is also warranted for the intertwined claim of entitlement to a TDIU prior to November 22, 2016. The matters are REMANDED for the following action: 1. Obtain any outstanding pertinent VA treatment records and associate them with the claims file. 2. Then, review the claims file, to include the January 2017 VA heart examination, February 2015 VA peripheral neuropathy examination, and the additional pertinent VA treatment records. (Continued on the next page)   Then, issue an SSOC for the increased rating claims for the heart and diabetes mellitus disabilities and for entitlement to a TDIU prior to November 22, 2016. Provide a copy to the Veteran and his representative and return to the Board for further appellate consideration, if in order. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Harper, Tristin