Citation Nr: 21013076 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 20-25 194 DATE: March 8, 2021 REMANDED Entitlement to an increased rating for sinusitis is remanded. Entitlement a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served active duty in the United States Navy from November 1943 to November 1946. This matter comes to the Board of Veterans’ Appeals (Board) on appeal of a May 2013 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Waco. In January 2019 and July 2020, the Board remanded the issue on appeal for additional development, and the case has since been returned for further appellate review. A remand by the Board confers on the claimant a legal right to substantial compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). The Board’s July 2020 remand directed the RO to provide the Veteran with a Statement of the Case (SOC) on the claim for increased rating of sinusitis, which was issued and mailed to the Veteran and his representative. However, remand is necessary to address notice deficiencies with the SOC and, as such, substantial compliance was not achieved. Id. at 271. 1. Entitlement to an increased rating for sinusitis is remanded. In January 2019, the Board remanded the sinusitis increased rating claim for issuance of a SOC to address the pending notice of disagreement (NOD) that was received in June 2013. See 38 C.F.R. § 20.302(a). The Board remanded the issue in July 2020 to allow adjudication of the issue by the agency of original jurisdiction (AOJ) as it had not been adjudicated in an April SOC. See A.B. v. Brown, 6 Vet. App. 35 (1993). Remand is again necessary in order to provide the Veteran and his representative with proper notice of the AOJ’s adjudication. The record indicates the AOJ issued and mailed an SOC on the sinusitis increased rating claim on September 1, 2020. A notification letter and copy of the SOC was mailed to the Veteran and his representative on September 11, 2020. However, the letter was returned via the United States Postal Service marked “return to sender, unable to forward” on October 1, 2020. Notification letters regarding this appeal’s return to the Board docket were also returned. The record indicates the AOJ and the Veteran’s representative did not become aware of the incorrect mailing address until February 2021 and no prior communication was received from the representative regarding either issue. Accordingly, the Board finds the Veteran and his representative did not receive proper notice. See 38 C.F.R. § 19.30. The claim is remanded to the AOJ for issuance of an SOC to provide the Veteran the opportunity to file a timely substantive appeal. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.26, 20.202; See Manlincon v. West, 12 Vet. App. 238 (1999). 2. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. In October 2020, the AOJ also mailed the Veteran and his representative a letter regarding his entitlement to compensation for unemployability, including an application form and request for employment information. The letter and forms addressed to the Veteran’s representative were returned to VA in November 2020, marked as “return to sender; unable to forward.” As the claim for TDIU is inexplicably intertwined with the Veteran’s increased rating claim for sinusitis, the issue must be remanded. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together). Therefore, further consideration of the claim for TDIU is deferred. Accordingly, the matters are REMANDED for the following action: 1. Issue a SOC to the Veteran addressing the issue of entitlement to an increased rating for chronic sinusitis and ensure it is sent to the appropriate addresses for both the Veteran and the representative. 2. Advise the Appellant of the procedural requirements to continue an appeal on the issue. If a substantive appeal is timely filed, the perfected issue should be certified to the Board. 3. Take all steps necessary to develop the Veteran’s claim for TDIU. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T.N. Chapman, 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.