Citation Nr: 21070335
Decision Date: 11/23/21	Archive Date: 11/23/21

DOCKET NO. 14-24 984
DATE: November 23, 2021

REMANDED

Entitlement to an effective date prior to August 29, 2016 for the award of a total disability rating based on individual unemployability (TDIU) is remanded.

REASONS FOR REMAND

The Veteran served in the U.S. Navy on active duty from August 1965 to August 1969 including service in the Republic of Vietnam.

These matters are before the Board of Veterans' Appeals (Board) on appeal from April 2013, December 2014, and April 2018 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO)

The appeal was before the Board in March 2020, when the Veteran's claims for entitlement to effective dates prior to August 29, 2016 for a TDIU rating and for 40 percent disability ratings for right and left lower extremity diabetic polyneuropathy were denied. The same March 2020 Board decision also remanded the issues of ratings in excess of 20 percent prior to August 29, 2016, and in excess of 40 percent, thereafter, for diabetic polyneuropathy of the sciatic nerve, lower left and right extremities. In other words, the March 2020 Board decision simultaneously denied and remanded the Veteran's claims for ratings in excess of 20 percent for diabetic polyneuropathy of the sciatic nerve, lower left and right extremities prior to August 29, 2016.

The Veteran appealed the Board's denials to the United States Court of Appeals for Veterans Claims (Court). By Order dated August 2021, the Court vacated the Board's March 2020 denial to earlier effective dates for the award of a 40 percent rating for diabetic polyneuropathy of the sciatic nerve, lower right and left extremity and entitlement to an effective date prior to August 29, 2016 for the award of a TDIU. The Court remanded the matters to the Board for compliance with the instructions included in the August 2021 Joint Motion for Remand (JMR) by the parties.

However, prior to the Court's remand in a February 2021 Board decision, the issues of entitlement to ratings in excess of 20 percent prior to August 29, 2016 and in excess of 40 percent thereafter, for diabetic polyneuropathy of the sciatic nerve, left and right lower extremity were readjudicated, and denied. That decision is final. Accordingly, the Board no longer has jurisdiction over those issues.

Entitlement to an effective date prior to August 29, 2016 for the award of a total disability rating based on individual unemployability (TDIU) 

The Veteran contends that he is entitled to an effective date prior to August 29, 2016 for the award of a TDIU rating.  

The Veteran has a 50 percent disability rating for posttraumatic stress disorder (PTSD), effective August 8, 2011. 

A July 2021 Board decision denied entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD). The Veteran appealed the Board's denial to the Court, and the issue is currently pending. 

The issue of whether the Veteran is entitled to a higher rating for his mental health disability could significantly impact a decision on the issue of whether the Veteran is entitled to an effective date prior to August 29, 2016 for the award of a total disability rating based on individual unemployability (TDIU). Accordingly, the issues are intertwined, and a remand is necessary. 

The matters are REMANDED for the following action:

Once the Veteran's Court appeal on the issue of entitlement to an initial rating in excess of 50 percent for PTSD is finalized, readjudicate the issue of whether the Veteran is entitled to an effective date prior to August 29, 2016 for the award of a TDIU rating. If the Court reverses or vacates the Board July 2021 decision , the rating for PTSD may be the subject of a separate Board action.  If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond.  If necessary, return the case to the Board for further appellate review.

 

 

J.W. FRANCIS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	T. Fitzgerald, Counsel

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.