Citation Nr: 18158954
Decision Date: 12/18/18	Archive Date: 12/18/18

DOCKET NO. 07-00 850
DATE:	December 18, 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 had active service from April 1978 to October 1982.  
As noted by the Board in its most recent remand in November 2017, an October 2013 rating decision granted a 10 percent rating based on multiple noncompensable service-connected disabilities.  Within one year of notice of that decision, the Veteran filed a statement asserting that his service-connected rhabdomyolysis should be evaluated higher.  The Board in November 2014 interpreted this as a claim for increased evaluations for rhabdomyolysis throughout his body, and remanded the claim for TDIU as inextricably intertwined with the claims for increased ratings for rhabdomyolysis.  The Board directed the Agency of Original Jurisdiction (AOJ) to issue appropriate notice, provide a VA examination, and adjudicate the claim. 
As further noted by the Board in November 2017, instead of issuing a rating decision, the AOJ issued a statement of the case (SOC) in July 2016, and the Veteran then submitted a substantive appeal and requested a hearing.  As a rating decision must be issued prior to the SOC, the Board, in November 2017, referred the issues of higher ratings for rhabdomyolysis throughout the Veteran’s body to the AOJ for issuance of a rating decision.  In a September 2018 rating decision, the Regional Office denied compensable ratings for rhabdomyolosis of the lumbar spine, cervical spine, left arm, left calf, left shoulder, left thigh, right arm, right calf, right shoulder, and right thigh.  In October 2018, the Veteran filed a notice of disagreement with the September 2018 rating decision and requested a review by a Decision Review Officer (DRO) and an informal conference with the DRO.  The AOJ is in the process of developing these claims, and the Veterans Appeals Control and Locator System (VACOLS) shows that they have their own separate appeal stream.  They are not currently before the Board and will be the subject of a separate decision, if otherwise in order. 
In the November 2017 remand, the Board also acknowledged that the Veteran recently perfected an appeal on the issue of entitlement to an increased initial evaluation for hidradenitis suppurativa, which will be the subject of a separate decision as the Veteran has requested a hearing.  
Entitlement to a TDIU.  
As noted above, the Veteran is seeking higher evaluations for his service-connected rhabdomyolysis throughout his body and for hidradenitis suppurativa.  These issues are not currently before the Board.  The Veteran does not currently meet the schedular requirements for TDIU.  Therefore, the issue of entitlement to a TDIU is inextricably intertwined with the issues of entitlement to higher evaluations for rhabdomyolysis throughout his body and for hidradenitis suppurativa (which is currently on appeal).  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).  Thus, the Board has no choice but to remand the claim of entitlement to TDIU.  

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The matter is REMANDED for the following action:
Following resolution of the Veteran’s pending appeals for increased evaluations for the service-connected rhabdomyolysis of his lumbar spine, cervical spine, left arm, left calf, left shoulder, left thigh, right arm, right calf, right shoulder, and right thigh; and for the service-connected hidradenitis suppurativa, the AOJ should readjudicate the claim of entitlement to a TDIU.

 
THERESA M. CATINO
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	M. Mac, Counsel