Citation Nr: 21016045 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 14-41 884 DATE: March 19, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) is dismissed. REMANDED Entitlement to service connection for a right knee disorder is remanded. FINDING OF FACT The Board of Veterans' Appeals (Board) improperly took jurisdiction of the TDIU issue in October 2018. CONCLUSION OF LAW The criteria for dismissal of entitlement to a TDIU have been met. 38 U.S.C. §§ 7104, 7105(d)(5); 38 C.F.R. § 20.104(c). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from May 1981 to July 1986. This matter comes before the Board on appeal from an October 2012 rating decision of an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). Issue: Entitlement to a total disability rating based upon individual unemployability (TDIU) The Board, when it first considered this appeal in October 2018, added the issue of TDIU to the six service connection issues the AOJ had certified to the Board. It stated: The issue of entitlement to a TDIU was not certified for appeal. However, when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered part of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). Specifically, in January 2015, the Veteran’s psychologist wrote that the Veteran’s psychiatric disability resulted in the Veteran’s unemployability. As the evidence suggests that the Veteran is unemployable due to symptoms of his disabilities, the issue of entitlement to a TDIU has been raised. The VA regulation defining eligibility for a TDIU is 38 C.F.R. § 4.16. This regulation, however, does not define the procedure by which a Veteran may claim a TDIU. Instead, VA practice and case law have defined two ways – formal and informal. A formal claim exists when VA receives a VA Form 21-8940. An informal claim, in contrast, is created pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). Rice holds that a claim for a TDIU is part of any open rating issue (initial or increased) when unemployability is expressly raised by a veteran or reasonably raised by the record during the rating appeal, and it attaches for the entire rating period. Because none of the issues the AOJ certified to the Board were open rating issues (initial or increased), the Board improperly added the issue of entitlement to a TDIU to the appeal. The Board erred, so the Board is correcting its error now by recognizing that it never had jurisdiction of this issue. Based on the foregoing, the Board must dismiss the appeal. 38 U.S.C. § 7105(d); 38 C.F.R. § 20.104(c). REASONS FOR REMAND In April 2009, the Veteran alleged that his right knee disorder was secondary to his right ankle disorder. In March 2019, the AOJ service connected his right ankle disorder. Therefore, in July 2020, the Board ordered the AOJ to examine the Veteran to determine if the right knee disorder was secondary to the right ankle disorder. The AOJ, in turn, examined the Veteran in November 2020. The examiner did not opine on causation. For aggravation, the examiner opined: Knee OA and ankle OA right are found on page 75. pmr 2012. However, Rating decision from March 2019 cited in Remand letter regarding service-connected right ankle disability cannot be found on searching indexed records or in complete medical records. Therefore, since service-connected right ankle disability cannot be found in records, it is less likely than not that Veteran’s right knee condition, diagnosed as arthritis, was aggravated (i.e., any worsening beyond its natural progression) by his service-connected right ankle disability. It is unclear why the examiner could not find the March 2019 rating decision. It is readily found in the claims file. However, given these shortcomings, the Board will remand for an addendum opinion. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from the medical professional who examined the Veteran for his right knee disorder in November 2020 or a similarly qualified individual. This person must answer the following: a) Is it at least as likely as not (50 percent or great probability) that the Veteran's service-connected right ankle disorder CAUSED his right knee disorder? Why or why not? b) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s service-connected right ankle disorder AGGRAVATES his right knee disorder? Why or why not? (Continued on the next page)   In answering this question, the medical professional MUST accept that VA has service connected the Veteran's lateral collateral ligament strain of the right ankle, effective February 7, 2012. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Sopko, 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.