Citation Nr: A21017134
Decision Date: 10/22/21	Archive Date: 10/22/21

DOCKET NO. 191025-44243
DATE: October 22, 2021

REMANDED

Entitlement to a total rating for compensation based on individual unemployability (TDIU) is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the U.S. Army from November1977 to September 1982. 

The rating decision on appeal was issued in October 2019 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. 

In the October 2019 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Hearing docket. The Veteran testified before the undersigned Veterans Law Judge during an April 2021 Board hearing. A transcript of the proceeding is of record. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a).

The Veteran appeals the denial of a total rating for compensation based on individual unemployability. The Veteran's claim for TDIU was denied as it was found that the Veteran did not have any service-connected disabilities and did not meet the schedular requirements for entitlement to individual unemployability.  The Veteran appealed the denial of TDIU. During this time, in a separate appeal, the Veteran also appealed the denial of service connection for lower back injury with severe pain and a bilateral hip disability. 

As the Veteran was not service-connected for any disability at the time of the denial for TDIU, the Board notes that the claim for TDIU is inextricably intertwined with the service connection claims described above. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other).

In a September 2021 Board decision, the Veteran was granted service connection for lower back injury with severe pain. The issues of entitlement to service connection for a right and left hip disability were remanded for further development. In an October 2021 rating decision, service connection for lumbosacral strain with degenerative arthritis with intervertebral disc syndrome and radiculopathy right lower extremity was granted. Although the AOJ assigned a 20 percent rating for the Veteran's lumbosacral strain and a 10 percent rating for radiculopathy right lower extremity, the AOJ noted that the initial evaluation was based on evidence of record and that the evaluation was still open. 

The Board must remand issues when necessary to satisfy a regulatory or statutory duty if correction would have a reasonable possibility of aiding in substantiating the claim. 38 C.F.R. § 20.802(a). The issue of compensation for lumbosacral strain with degenerative arthritis with intervertebral disc syndrome was deferred pending an examination. As the TDIU claim is inextricably intertwined with the above, the claim for TDIU must be remanded pending complete adjudication of that matter.

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The matters are REMANDED for the following action:

After the issue of compensation for lumbosacral strain with degenerative arthritis with intervertebral disc syndrome is fully adjudicated, readjudicate the issue of entitlement to a TDIU.

 

 

T. MAINELLI

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	T.S. Willie

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.