Citation Nr: 21013214 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 10-35 988 DATE: March 9, 2021 ORDER The Board does not have jurisdiction over the claim for entitlement to a total disability rating based on individual unemployability (TDIU) and the matter is dismissed. REFERRED The issue of entitlement to a TDIU is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. FINDING OF FACT The claim for entitlement to a TDIU is not properly in appellate status before the Board. CONCLUSION OF LAW The Board does not have jurisdiction to adjudicate the claim for entitlement to a TDIU. 38 U.S.C. § 7104. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service from November 1976 to March 1977 and from March 1979 to June 1983. This matter comes before the Board of Veterans Appeals (Board) from a June 2020 Memorandum Decision issued by the United States Court of Appeals for Veterans Claims (Court). 1. Whether the Board has jurisdiction over a claim for entitlement to a TDIU The Board issued a decision in February 2018 that referred a claim for entitlement to a TDIU. As explained then, it had previously referred the same claim in a January 2016 remand with detailed explanation as to why it did not have jurisdiction over the claim despite the Veteran’s attorney’s continued assertion that the issue of entitlement to TDIU remained before the Board as part of an underlying claim for an increased rating pursuant to Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Veteran appealed the February 2018 Board decision as it pertains to the Board’s action on the TDIU claim. The Court’s June 2020 Memorandum Decision indicated that a jurisdictional question lay at the heart of the parties’ dispute in this matter since they were asking the Court to determine whether it had jurisdiction to review the Board’s referral of entitlement to a TDIU. The Court noted that while this was an important question that it would eventually need to resolve, it faced a more fundamental question first, namely, whether the Board actually referred TDIU in the decision on appeal. The Court concluded that it could not reach the jurisdictional question even though that issue is normally considered one to be resolved at the threshold of proceedings without knowing the answer to that question. The Court indicated that it was left wondering whether the Board referred TDIU in the February 2018 decision or whether TDIU was still before the RO and the Board was simply stating that fact. The Court concluded that the Board’s discussion left open the question of whether TDIU was actually referred in the February 2018 decision or had been referred prior to this decision and that remand was warranted for the Board to address this significant matter so that the Court would be able to engage in meaningful judicial review. The Board will do as requested. The succinct answer is that the February 2018 Board decision again referred the claim for entitlement to a TDIU that had remained unadjudicated after the initial referral of the TDIU claim in January 2016. As such, the Board was both stating the fact that a previously referred claim was still pending before the RO as well as stating that it was again referring the still-pending claim. The Board will discuss the procedural history of the case to better explain what transpired. The RO issued a rating decision in June 2009 that reduced the disability evaluations assigned for the service-connected right and left knee disabilities from 20 percent to 10 percent effective May 9, 2009. The June 2009 rating decision also denied a formal claim for entitlement to a TDIU. The Veteran appealed to the Board. In March 2014, the Board issued a decision that characterized the issues on appeal from the June 2009 rating decision as entitlement to evaluations in excess of 10 percent for the service-connected right and left knee patellofemoral syndrome, to include the propriety of a reduction from 20 percent disabling effective from May 6, 2009. The Board concluded that the reduction in evaluation from 20 percent to 10 percent for the service-connected right and left knee patellofemoral syndrome effective from May 6, 2009 was proper, and that the criteria for evaluations higher than 10 percent from that date had not been met. The Board also denied the claim for entitlement to a TDIU. The Veteran appealed the Board’s March 2014 decision to the Court. His current attorney aided him in that appeal and has remained the attorney of record since then. In June 2015, the Court issued a Memorandum Decision that held the Statement of the Case (SOC) issued by the RO in August 2010 following the Veteran’s notice of disagreement to the June 2009 rating decision had improperly characterized the issues on appeal as entitlement to increased ratings, rather than the propriety of the rating reductions. The Court directed the Board to remand the case back to the AOJ with instructions to issue an SOC that properly characterized the issues on appeal. The Court upheld the Board’s decision to deny a TDIU. The Board remanded the issues of whether the reductions from 20 percent to 10 percent effective May 9, 2009, for the service-connected right and left knee disabilities was proper in January 2016. The Introduction noted that the Veteran’s attorney had recently submitted a Vocational Assessment performed in September 2015 in support of the argument that the issue of entitlement to TDIU remained before the Board as part of the underlying claim for an increased rating pursuant to Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Board explained that the June 2015 Court Memorandum Decision had concluded that the issues on appeal in the Veteran’s case were not whether he was entitled to increased ratings for his bilateral knee disability, but rather the propriety of the rating reductions. The Board further explained that since the Court’s June 2015 Memorandum Decision made no reference to increased rating claims, and no mention that claims for increase were intertwined with the rating reduction claims that the Court had determined were the proper issues on appeal, there was no need to discuss whether ratings in excess of the reduced percentages were warranted, including the issue of whether entitlement to TDIU pursuant to Rice was warranted. The Board also noted that the Court had affirmed the March 2014 Board decision to deny entitlement to a TDIU and that the only appeal presently before the Board pertained to the rating reductions. The Board determined that the evidence submitted by the Veteran’s attorney concerning entitlement to a TDIU raised a new claim for that benefit, and it was referred to the AOJ for appropriate action. The Board subsequently issued a decision in February 2018 that restored the 20 percent ratings for the right and left knee disabilities as of the date of the reductions. Since no action had been taken by the RO on the new claim for entitlement to a TDIU that had been referred in January 2016, the Board referred that claim to the AOJ a second time. Therefore, to again answer the question raised by the Court in the June 2020 Memorandum Decision as to whether TDIU was actually referred in the February 2018 decision, the answer is yes, it was. The Board does not have jurisdiction over a claim for entitlement to a TDIU now, and it did not have such jurisdiction at the time it issued its decisions in January 2016 and February 2018, despite assertions made by the Veteran’s attorney to the contrary. This lack of jurisdiction is the reason that the issue of entitlement to a TDIU pursuant to Rice was referred in January 2016 and February 2018 and is again being referred in this decision. As the Board explained in detail in January 2016, when the Veteran appealed the March 2014 Board decision to the Court, his briefings made no reference to an increased rating claim for the knees; rather, the arguments concerning the knee claims centered solely on the impropriety of the reduction. The Board cited to Pederson v. McDonald, 27 Vet. App. 276 (2015) (arguments not raised on appeal to the Court are considered abandoned) in concluding that to the extent that claims for increased ratings of the left and right knees were on appeal before the Court from the March 2014 Board decision, the appeal on such matters was abandoned. Since there was no claim before the Board in January 2016 for increased ratings involving the Veteran’s knees after the Court vacated the March 2014 Board decision, there could be no claim for entitlement to a TDIU pursuant to Rice. This determination is based squarely on the Court’s holding in Rice that a request for TDIU is best understood as part of an initial claim for VA disability compensation based on the individual effect of the veteran’s underlying disability or disabilities or as a particular type of claim for increased compensation. See Rice, 22 Vet. App. at 447 (emphasis added). The Veteran, who was represented by his current attorney when the Board issued its decision in January 2016, did not appeal that decision to the Court and the time to appeal that decision has passed. 38 U.S.C. § 7266. Any claimed error contained in the January 2016 Board decision cannot now be attacked through an appeal of the February 2018 Board decision, which merely referenced the January 2016 decision when it again referred the issue of entitlement to a TDIU to the AOJ. The Veteran and his attorney also did not consider that increased rating claims involving the knees were at issue following the January 2016 Board decision, evident in the fact that they only sought for the RO to provide a status of the remanded rating reduction issues and the issue of entitlement to a TDIU referred by the Board as a new claim in January 2016. See correspondence dated May 25, 2016, July 22, 2016, September 26, 2016, November 28, 2016, January 27, 2017, June 27, 2017, August 24, 2017, September 5, 2017, and November 6, 2017. In addition, the March 1, 2017 statement submitted in conjunction with the VA Form 9 filed in response to the January 2017 SOC that addressed the propriety of the reductions of the right and left knee disability ratings took issue with VA again focusing on the criteria for an increased rating appeal without addressing “the matter at hand - that sustained improvement of the Veteran’s left and right knee conditions must be show under the ordinary conditions of daily life in order to implement a proper reduction.” The March 2017 statement made no mention of the issue of entitlement to a TDIU being part and parcel of the claims remaining on appeal. This statement indicates that the Veteran and his attorney did not believe the issue on appeal included any increased rating claims. It was not until a January 2, 2018 letter that the Veteran and his attorney made any mention of entitlement to increased ratings for his bilateral knee condition. It was this statement that the Board referenced in its February 2018 decision when it again referred the issue of entitlement to a TDIU before adjudicating the propriety of the rating reductions. Since the Veteran has not shown that increased rating claims involving the knees remain before the Board in appellate status, the Board does not have jurisdiction to address the issue of entitlement to TDIU as part of an underlying claim for an increased rating pursuant to Rice. Further, since the Board has again concluded that it does not have jurisdiction over a claim for entitlement to a TDIU, the matter of entitlement to a TDIU is dismissed. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Van Wambeke, 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.