Citation Nr: 21008460 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 15-02 279 DATE: February 17, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected conditions is dismissed. FINDINGS OF FACT 1. In September 2019, the Board of Veterans’ Appeal remanded the issue of entitlement to a TDIU for the agency of original jurisdiction (AOJ) to provide the Veteran with notice of the laws and regulations governing TDIU. 2. In an April 2020 rating decision, the AOJ denied the Veteran’s claim for a TDIU. 3. In August 2020, the Board again remanded the issue of entitlement to a TDIU for further development after granting service connection for the Veteran’s sleep apnea. 4. In September 2020, the Veteran submitted a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), appealing the April 2020 rating decision that denied entitlement to a TDIU and requesting a hearing. 5. On December 2020, the Veteran’s claim for a TDIU was placed on the Board’s hearing docket. CONCLUSION OF LAW The criteria for dismissal of entitlement to a TDIU have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Army from March 1985 to March 1988. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review. The AMA was implemented effective February 19, 2019. Under the new framework the Board will review claims after receiving a Department of Veterans Affairs (VA) Form 10182 appeal to the Board. By way of background, the Board first remanded, in pertinent part, the issue of entitlement to a TDIU in September 2019, after the issue was raised under Rice v. Shinseki, 22 Vet. App. 447 (2009). The AOJ requested that the Veteran complete and return VA Form 21-8940, as instructed by the Board’s September 2019 remand directives. See October 2019 Appeal Process Request Letter. The Veteran failed to do so, and the AOJ issued a rating decision denying the Veteran’s claim to a TDIU in April 2020. Subsequently, the AOJ issued a supplemental statement of the case (SSOC) in May 2020 that denied the Veteran’s claim to a TDIU, and the matter was returned to the Board. In August 2020, the Board of Veterans’ Appeals (Board) again remanded the issue of entitlement to a TDIU for further development. Specifically, the Board instructed the regional office (RO) to effectuate the Board’s grant of service connection for sleep apnea and assigned a disability rating prior to providing the Veteran with notice of the laws and regulations pertaining to entitlement to a TDIU. Subsequently, the Veteran submitted a VA Form 10182 in September 2020, requesting the hearing docket, and identified the date of the decision as May 6, 2020 (i.e., the date of the SSOC). In December 2020, the Board notified the Veteran that his appeal was placed on the hearing docket. See December 2020 BVA Letter. The Board notes that while the Veteran’s September 2020 10182 is invalid as an appeal to the May 2020 SSOC as it was submitted after the allowed 60 days to opt into AMA, it is valid for the April 2020 rating decision denying TDIU. Resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran mistakenly identified May 6, 2020 as the date of the decision he was appealing in his September 2020 10182, and he was, in fact, appealing the April 2020 rating decision that denied his claim for a TDIU. The Board further notes that appeals for a TDIU can exist in both legacy and AMA systems, depending on the specific circumstances of the appeal, because a TDIU claim can exist independently and also as part and parcel of increased rating claims. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Harper v. Wilkie, 30 Vet. App. 356 (2018); Payne v. Wilkie, 31 Vet. App. 373 (2019). However, the Veteran requested a hearing in his September 2020 10182, meaning he intends to submit further arguments and evidence for his claim to a TDIU. Therefore, the Board finds that a dismissal of the Veteran’s appeal for entitlement to a TDIU in the legacy system so that the AMA appeal can be adjudicated following a hearing is most favorable to the Veteran. (Continued on the next page)   Accordingly, the appeal for entitlement to a TDIU under the legacy appeal system is dismissed. The Board notes that the AMA appeal for a TDIU remains active. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. L. Park, 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.