Citation Nr: 21014814 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 13-07 342 DATE: March 15, 2021 ORDER The appeal with respect to the Veteran’s entitlement to service connection for carpal tunnel syndrome of the left hand is dismissed. The appeal with respect to the Veteran’s entitlement to service connection for carpal tunnel syndrome of the right hand is dismissed. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) for the period prior to September 29, 2011 is remanded. FINDING OF FACT In June 2020, while the current appeal was pending, the AOJ granted the Veteran’s claim for entitlement to service connection for bilateral carpal tunnel syndrome. CONCLUSION OF LAW There remains no case or controversy with respect to the Veteran’s entitlement to service connection for bilateral carpel tunnel syndrome over which the Board may exercise jurisdiction. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 20.103, 20.104. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from December 1965 to May 1969, to include service in the Republic of Vietnam. These matters are before the Board of Veterans’ Appeals (Board) on appeal from an October 2009 rating decision issued by the Los Angeles, California Regional Office (RO) of the Department of Veterans Affairs (VA). In February 2016 and September 2018, the Board remanded the issues for further development. The Veteran presented testimony at a Board videoconference hearing before a Veterans Law Judge (VLJ) in October 2015; a transcript of that hearing has been associated with the Veteran's claim file, and is of record. The VLJ who conducted this hearing is no longer employed by the Board. Generally, the law requires that the VLJ who conducts a hearing on an appeal must participate in any decision made on that appeal. See 38 U.S.C. § 7107 (c); 38 C.F.R. § 20.707. As the VLJ who conducted the October 2015 Board hearing has since retired, he cannot participate in the adjudication of the Veteran's claim. In a July 2018 letter, VA informed the Veteran of his right to an additional hearing before another VLJ. In an August 2018 response, the Veteran he did not wish to have another hearing before the Board. As such, the Board will proceed with addressing the appeal. By a June 2020 rating decision, the RO granted service connection for bilateral carpal tunnel syndrome with degenerative arthritis and peripheral neuropathy. The RO also granted service connection for entitlement to a TDIU, effective September 29, 2011. Entitlement to service connection for carpal tunnel syndrome of the bilateral hands is dismissed. Under 38 U.S.C. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. One of the principal functions of the Board is to make determinations of appellate jurisdiction. 38 C.F.R. § 20.103. The Board may address questions pertaining to its jurisdictional authority to review a particular case. 38 C.F.R. § 20.101(d). In June 2020, while the current appeal was pending, the AOJ granted the Veteran’s claim for service connection for bilateral carpal tunnel. As the benefit sought on appeal has been allowed, there remains no case or controversy over which the Board may exercise jurisdiction. See 38 U.S.C. §§ 511, 7104; 38 C.F.R. §§ 20.103, 20.104; Grantham v. Brown, 114 F.3d. 1156 (Fed. Cir. 1997). The appeal must be dismissed. REASONS FOR REMAND Entitlement to a TDIU prior to September 29, 2011 is remanded. The former Veterans Law Judge who held the October 2015 hearing accepted a September 2011 claim for increase for the Veteran’s back disability as a notice of disagreement to an earlier, April 2011 rating decision that granted service connection for the back disability as ten percent disabling, effective August 31, 2009 (later amended to August 28, 2009). In light of that, the appeal period for the Veteran’s back disability claim dated back to August 28, 2009. TDIU, once raised in connection with a claim for increase has the same appeal period as the underlying increased rating claim. Once entitlement to a TDIU is at issue as part and parcel of a claim for an increased rating under Rice v. Shinseki, 22 Vet. App. 447, 453 (2009), a claimant need not appeal a denial of TDIU by the AOJ for the TDIU issue to remain in appellate status. Payne v. Wilkie, 31 Vet. App. 373 (2019); Harper v. Wilkie, 30 Vet. App. 356 (2018). Conversely, when the AOJ grants TDIU for a portion of the appeal period but fails to grant the benefit in full (i.e., entitlement to a TDIU for the entire period on appeal), that portion of the TDIU claim that has been denied remains on appeal. With that said, the Veteran did not meet the regulatory requirements for a rating in excess of 50 percent prior to September 29, 2011. Even when a Veteran does not meet the percentage standards for schedular TDIU, he may be considered for a TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). However, the Board does not have the authority to award an extraschedular TDIU in the first instance. 38 C.F.R. § 4.16(b). Rather, the Board may only consider whether referral for extraschedular consideration is appropriate. This evidence, which was of record at the time of the rating decision on appeal, suggests that the Veteran’s service-connected disabilities may have rendered him unemployable. Accordingly, the Board will remand the matter for referral to the Director of Compensation Service. See 38 C.F.R. § 20.802(a); 38 C.F.R. § 4.16(b). This matter is REMANDED for the following action: 1. Refer the issue of entitlement to a TDIU prior to September 29, 2011 to the Director of the Compensation Service for extraschedular consideration. (Continued on the next page)   2. Then, readjudicate the appeal. If any benefit remains denied, issue a supplemental statement of the case (SSOC) and allow the applicable time for response. Thereafter, return the case to the Board. Roya Bahrami Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board F. Lanton, 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.