Citation Nr: 21021309 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 06-04 687 DATE: April 12, 2021 REMANDED The claim of entitlement to a total disability rating based on individual unemployability (TDIU) prior to October 29, 2014 is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1966 to January 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a rating decision by a U.S. Department of Veterans Affairs (VA) Regional Office (RO). The case has been subject to several actions by the RO, Board, and the U.S. Court of Appeals for Veterans Claims (Court). Most recently, in an April 2020 decision and remand, the Board granted entitlement to a TDIU from October 29, 2014 and remanded the issue of whether a TDIU was warranted prior to that date. In the remand the Board requested additional development into the claim and requested that the issue be submitted to the Director, VA Compensation Service for extraschedular consideration. See 38 C.F.R. § 4.16(b). The case is again before the Board for appellate review. The case must be remanded again. The record indicates that the claim on appeal is intertwined with claims that may still be pending. It appears that an October 2019 rating decision, which granted entitlement to service connection for bilateral lower extremity neurological disabilities, is not final. It appears that VA has not properly notified the Veteran of his appellate rights with respect to the decision. The issues addressed therein, to include the assigned initial ratings and effective dates, may impact whether an earlier effective date is warranted for the assignment of the TDIU. See Smith v. Gober, 236 F.3d 1370, 1372 (Fed. Cir. 2001) (the appropriate remedy when a pending claim is inextricably intertwined with a claim on appeal is to defer adjudication of the claim on appeal pending the adjudication of the inextricably intertwined claim). In the 2000s, the Veteran filed multiple original claims of entitlement to service connection for lower extremity neurological disorders. The claims were subject to several actions by the RO, Board, and Court. Then, following a February 2018 Board remand for additional development into the claims, the RO, in an October 2019 rating decision, granted entitlement to service connection for the claims. In the October 2019 notification letter accompanying the decision, the RO notified the Veteran of his appellate rights not under the legacy appeal system but under the Appeals Modernization Act (AMA). See 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.2400, 3.2500, 19.2, 20.302, 20.1103. The RO notified the Veteran that if he disagreed with the decision, to include the initial ratings and effective dates assigned, he should submit a form pursuant to the AMA. The RO notified the Veteran that if he wished to appeal the decision to the Board, he should submit a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD). In response, in February 2020, the Veteran submitted a VA Form 10182 in which he contested the initial ratings assigned in the October 2019 decision. Further, in several subsequent statements, he reiterated his desire to appeal the October 2019 decision. In response, the Board notified the Veteran that it could not accept the appeal. The Board indicated that the Veteran did not properly opt-in to the AMA system because he filed his VA Form 10182 following issuance of a RO rating decision rather than following issuance of a statement of the case (SOC) or supplemental SOC. See 38 C.F.R. § 19.2. Based on the foregoing, the October 2019 notification letter regarding appellate rights appears to be incomplete. The Veteran should have been notified of his appeal rights under the legacy system as well as under the AMA. As such, the October 2019 rating decision cannot now be deemed final – as the record now stands, it appears that VA has not provided the Veteran with proper notification regarding his right to appeal. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. Therefore, a decision regarding the TDIU claim must be deferred until the intertwined issues addressed in the October 2019 rating decision have been finally adjudicated. The matter is REMANDED for the following action: Once the record demonstrates that the Veteran has been properly notified of his appellate rights with regard to the October 2019 rating decision, and the issues addressed therein regarding the initial rating of lower extremity neurological disabilities have been finally resolved, readjudicate the claim of entitlement to a TDIU prior to October 29, 2014. Then return the issue to the Board if warranted. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Christopher McEntee, 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.