Citation Nr: 21070716
Decision Date: 11/24/21	Archive Date: 11/24/21

DOCKET NO. 16-04 999
DATE: November 24, 2021

REMANDED

Entitlement to an initial compensable rating prior to August 3, 2017 and a rating in excess of 10 percent from that date for service-connected bilateral pes planus is remanded.

Entitlement to an initial compensable rating for left ring finger arthritis is remanded.

Entitlement to a total disability rating based on individual unemployability (TDIU) prior to September 15, 2017 is remanded.  

REASONS FOR REMAND

The Veteran served on active duty from February 1989 to June 1989, November 1989 to May 1998 and June 1998 to July 2010.

The Veteran had previously requested a hearing before the Board, but waived that request and asked that a decision be made on her appeal.  See February 2021 Report of Contact. The Veteran did not respond to a July 2021 letter from the Board to clarify here hearing request. In a May 2021 Informal Hearing Presentation (IHP), the Veteran's representative referenced the Veteran's 2016 hearing request, but did not comment on the Veteran's recent request to withdraw the hearing request and have a decision made. The Board will adjudicate the claims. 

The claim for TDIU prior to September 15, 2017 is before the Board as part of the increased rating claims that have been pending since before that date. Rice v. Shinseki, 22 Vet. App. 447 (2009).

1. Entitlement to an initial compensable rating prior to August 3, 2017 and in excess of 10 percent from that date for service-connected bilateral pes planus is remanded.

2. Entitlement to an initial compensable rating for left ring finger arthritis is remanded.

The claims are remanded to consider additional evidence added to the record prior to transfer to the Board that has not been considered by the Agency of Original Jurisdiction (AOJ) in the first instance. 38 C.F.R. §§ 19.31, 19.37(a). 

In the August 2012 rating decision on appeal, service connection was granted and initial noncompensable ratings assigned for the left finger and bilateral pes planus disabilities. The Veteran perfected an appeal as to both issues. In an August 2017 rating decision, the rating for the pes planus was increased to 10 percent, effective August 4, 2017. In an August Supplemental Statement of the Case (SSOC), the Agency of Original Jurisdiction (AOJ) addressed only the pes planus claim. The Veteran has not withdrawn the claim for increased rating for the left ring finger. In addition, she presented for a VA examination for her left ring finger in December 2017. 

3. TDIU

In an April 2018 rating decision, TDIU was awarded, effective September 15, 2017, the date the Veteran submitted an Intent to File. A completed VA Form 21-8940, Application for TDIU was received in November 2017. 

On the TDIU claim, the Veteran indicated she last worked in July 2010 and cited "all service connected conditions" as preventing her from obtaining substantially gainful employment. The TDIU claim is part of the increased rating claims before the Board and entitlement to TDIU for the period prior to September 2017 is still on appeal. Rice, 22 Vet. App. at 447.

The matters are REMANDED for the following action:

1. Review the evidence added to the record since the August 2017 SSOC to specifically include review of all  evidence related to the left finger disability added to the record since the December 2015 SOC. Take all indicated development. 

2. After completion of the above, readjudicate the claims, including the claim for TDIU prior to September 15, 2017.

 

M.E. Larkin

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	T. Jarman, Associate 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.