Citation Nr: 21011482
Decision Date: 03/02/21	Archive Date: 03/01/21

DOCKET NO. 13-15 365
DATE: March 2, 2021

REMANDED

A total disability based on individual unemployability (TDIU) due to service-connected disabilities is remanded.

REASONS FOR REMAND

The Veteran served on active duty from April 1968 to April 1970.  This matter comes before the Board of Veterans’ Appeals (Board) from an August 2010 rating decision, which granted service connection and assigned an initial rating of 30 percent for posttraumatic stress disorder (PTSD).  Specifically, the Veteran appealed for a higher initial rating.  The Board remanded that claim for additional development in April 2016 and December 2017.  In September 2018, the Veteran testified regarding it at a hearing before the undersigned.  The Board granted a higher initial rating of 50 percent for his service-connected PTSD in May 2019.  The Board also found that a TDIU was part and parcel to his higher initial rating claim, and remanded it for additional development.

TDIU

Unfortunately, another remand is necessary prior to adjudicating the Veteran’s entitlement to a TDIU.  Whether a TDIU is warranted must be based on the impact all his service-connected disabilities have on his ability to work, even though it initially was raised as part and parcel only to his higher initial rating claim for one such disability.  Allport v. Wilkie, 2019 U.S. App. Vet. Claims LEXIS 849, No. 18-2000 (May 29, 2019) (non-precedential); Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (persuasive non-precedential decisions may be cited).  His most recent code sheet from December 2020 reflects that he is service-connected for tinnitus and for bilateral hearing loss in addition to PTSD.  The additional development undertaken by the agency of original jurisdiction (AOJ) in response to the Board’s remand for a TDIU accordingly focused on these three disabilities.  

That a fourth disability is service-connected appears to have been overlooked.  Service connection for right foot sesamoiditis was granted in the Board’s December 2017 decision.  However, the AOJ never issued a rating decision implementing this grant by assigning that disability an initial rating.  Doing so is compulsory.  It further must be done before addressing TDIU, as the initial ratings/ratings assigned to service-connected disabilities control whether consideration is on a schedular or an extraschedular basis.  38 C.F.R. § 4.16(a, b); Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (claims are inextricably intertwined when adjudicating one may significantly impact adjudication of the other); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991).  Any necessary additional development focusing on the impact the Veteran’s right foot sesamoiditis has on his ability to work finally must occur prior to TDIU adjudication.

This matter is REMANDED for the following action:

1. Issue a rating decision to implement the Board’s December 2017 decision granting service connection for right foot sesamoiditis.  

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2. Undertaking any necessary additional development, particularly as it relates to the impact the Veteran’s service-connected right foot sesamoiditis has on his ability to work.

3. Then readjudicate a TDIU.  If this benefit remains denied, follow established procedure for returning the claim to the Board.

 

 

Thomas H. O’Shay

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	S. Becker

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.