Citation Nr: 21015809
Decision Date: 03/18/21	Archive Date: 03/18/21

DOCKET NO. 14-26 605
DATE: March 18, 2021

REMANDED

Entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU) due to service-connected disabilities is remanded.

REASONS FOR REMAND

The Veteran served on active duty from August 1992 to June 2000. This matter is on appeal from a January 2011 rating decision. In July 2017, the Veteran testified before the undersigned at a video conference hearing. The Board of Veterans’ Appeals (Board) remanded entitlement a TDIU for additional development in March 2018, July 2019, and September 2020. The matter now returns to the Board for appellate consideration.

Entitlement to a TDIU is remanded.

The March 2018, July 2019, and September 2020 Board remands noted that the adjudication of  the issue of entitlement to a TDIU was not yet appropriate as the issue of entitlement to a TDIU was inextricably intertwined with the issue of entitlement to a higher rating for a service-connected right knee disability. The issue of higher ratings had a bearing on his eligibility to entitlement to a TDIU. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The Board notes that the July 2019 Board decision also denied a higher rating for a left knee disability, and that denial was subsequently appealed to the United States Court of Appeals for Veterans Claims. As a result, the July 2019 denial of a higher rating for a left knee disability was vacated and sent back to the Board for corrective action. The Board remanded the issues of entitlement to higher ratings for left knee disabilities in December 2020. That remand explicitly noted that the matter of entitlement to a TDIU was, at the time, still within the jurisdiction of the Agency of Original Jurisdiction (AOJ) and that the issue had not yet been recertified to the Board following completion of the directives of the September 2020 remand. The December 2020 remand further noted that in remanding the issue of entitlement to higher ratings for the left knee, the AOJ would have the opportunity to recertify both the appeal streams back to the Board at the same time. Nonetheless, the issue of entitlement to a TDIU was recertified to the Board prior to completion of the directives relating to the Veteran’s appeal for higher ratings for the left knee. The Board notes that the issue of entitlement to a TDIU is inextricably intertwined with the issues of entitlement to higher ratings for a left knee disability remanded in December 2020 in the same fashion as it was with regard to a higher rating of the right knee. Id. As such, the matter must again be remanded pending the development directed by the December 2020 remand. 

The matter is REMANDED for the following action:

Only after the development with regard to the Veteran’s left knee disabilities as directed by the December 2020 remand is completed, readjudicate the Veteran’s claim for a TDIU.

 

 

Thomas H. O'Shay

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	J. Baker, 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.