Citation Nr: 21024968 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 17-62 789 DATE: April 27, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to January 21, 2021, is remanded. REASONS FOR REMAND The Veteran had active duty service from January 1998 to April 1998. This case comes before the Board of Veteran’s Appeals (Board) on appeal of an April 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. By way of history, this case was previously before the Board in June 2019. In pertinent part, the Board denied entitlement to service connection for a back disability and jurisdiction of the claim for entitlement to a TDIU. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2020 Joint Motion, the Board’s decision was vacated and remanded the case back to the Board for additional development. In October 2020, in accordance with the June 2020 Joint Motion, the Board remanded the issue of entitlement to service connection for a back disability to obtain an additional VA examination and etiological opinion. Additionally, the Board remanded the issue of TDIU as inextricably intertwined. See Harris v. Derwinski, 2 Vet. App. 180, 183 (1991). The Veteran was afforded a VA examination in January 2021. In a February 2021 rating decision by the RO, the Veteran was granted service connection for spinal stenosis (claimed as low back strain with pain) with a 10 percent disability rating effective December 11, 2014, and a 40 percent evaluation from January 20, 2021. Further, the Veteran was granted service connection for radiculopathy, left lower extremity, sciatic nerve, with a 10 percent rating effective December 11, 2014. The Veteran was additionally granted service connection for radiculopathy, left lower extremity, femoral nerve, and right lower extremity, femoral and sciatic nerve, each rated at 10 percent disabling with an effective date of January 20, 2021. The AOJ also granted a TDIU from January 20, 2021, and thus, the issue on appeal has been recharacterized to reflect this partial allowance. Issue No Longer on Appeal After the October 2020 Board remand directives had been substantially completed, in February 2021, the RO established service connection for spinal stenosis with radiculopathy formerly claimed as low back disability. Although the appeal period of this decision remains pending, Veteran has not expressed disagreement with the assigned initial evaluation or effective date for this award, and thus, this appealed issue is abrogated and is no longer in appellate status. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection). Entitlement to a TDIU prior to January 20, 2021, is remanded. The February 20201 rating decision, inter alia, also established TDIU from January 20, 2021. However, in May 2016, the Veteran originally applied for TDIU as due to her now-severed major depressive disorder. The Veteran was denied TDIU in an April 2018 rating decision. The Veteran filed a notice of disagreement (NOD) in June 2018. In June 2019, the Board declined jurisdiction of the claim of entitlement to a TDIU. Alternatively, the Court found the record suggested the TDIU issue may not have been separated given the April 2018 rating decision which noted “the issue of individual unemployability will be incorporated into your pending appeal.” Therefore, the JMR directed the Board to consider whether the RO’s correspondence would have led a reasonable person to assume that TDIU would be part of the decision on appeal. The Board further notes that a previous initial increased rating claim was originally a part of the instant appeal related to a claim dated April 3, 2013, and as such, regardless of the fact that service connection for the disability that was the subject of the increased rating claim was recently severed, effective from April 1, 2021, the Board additionally finds that consideration of a TDIU under Rice v. Shinseki, 22 Vet. App. 447 (2009) is for consideration as an included claim. However, as service connection for that disability has now been severed, the earliest date on which a service-connected can serve as a basis for TDIU would be December 11, 2014. As a result of the above, the Board remanded the issue in its October 2020 decision, finding that it was inextricably intertwined with the issue of entitlement to service connection for a low back disability. Because the Board took jurisdiction over a pending TDIU claim, the Board finds that the RO’s grant of TDIU from January 20, 2021, is only partial, and the remaining entitlement for TDIU for the entire pendency of this claim continues as an issue remaining on appeal. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993); Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Accordingly, as an initial matter, the Board finds that the appeal period pertinent to the Veteran’s TDIU is from December 11, 2014, to January 19, 2021. As such, the question before the Board is whether the Veteran’s service-connected disabilities, alone or in concert, prevented her from securing and/or maintaining a substantially gainful occupation at any time from December 11, 2014, to January 19, 2021. The Board notes that prior to January 20, 2021, the Veteran does not meet the schedular criteria for a TDIU. Where the percentage requirements of 38 C.F.R. § 4.16(a) are not met, entitlement to the benefits on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). As alluded to above, complicating matters, in May 2020, the RO notified the Veteran that they were proposing to sever service connection for major depressive disorder with generalized anxiety disorder due to clear and unmistakable error (CUE). The Veteran was assigned a 70 percent disability rating from April 3, 2013, to April 1, 2021. In January 2021, the RO notified the Veteran that severance for her service-connected acquired psychiatric disorder would be effective on April 1, 2021. Most recently, the Veteran filed her VA 10182 NOD disagreeing with the RO’s decision to sever service connection for a psychiatric disorder. Given this active appeal within the VA’s system, which may retroactively change her combined evaluation prior to January 20, 2021, the Board finds the issue of TDIU prior to January 20, 2021, inextricably intertwined with the issue of severance of service connection for a psychiatric disability to include major depressive disorder with a generalized anxiety disorder. Furthermore, extraschedular consideration under 38 C.F.R. § 4.16(b) may be necessary for any time period the Veteran’s occupations are found to be marginal prior to January 20, 2021. In addition to the complications outlined above, there is a question concerning whether the Veteran’s employment in sales throughout the subject appeal period qualified as marginal employment or a substantially gainful occupation under the governing laws. To this point, the Veteran's file is devoid of any evidence concerning her personal income during this timeframe. Accordingly, the appeal must be remanded to obtain evidence confirming the Veteran's income from December 11, 2014, to January 19, 2021. Therefore, further delay is regrettable, but the Board finds a remand is necessary. The matters are REMANDED for the following actions: 1. The RO must contact the Veteran and ask that she verify her personal income since December 11, 2014, to include any supporting documentation and/or pay stubs. *The Veteran is encouraged to comply with the RO's efforts to determine her income from December 2014 to the present, as her failure to do so may result in VA's inability to grant the benefits that she is seeking. 2. After the completion of the above, the RO must determine whether the Veteran’s income since December 2014 is above or below the poverty threshold as per the standards of the U.S. Department of Commerce, Bureau of the Census. 3. Thereafter, the AOJ must take any appropriate actions necessary to develop and readjudicate the Veteran’s TDIU appeal, to include referral of the appeal to the Director of Compensation Service for any period where the Veteran’s combined evaluation does not meet the schedular requirements for TDIU and her income was below the poverty threshold. *The AOJ is on notice that the outcome of the Veteran’s severance appeal will greatly impact her TDIU appeal. As such, actions on the TDIU appeal may be deferred until the severance issue is finalized. 4. Thereafter, the AOJ must readjudicate the Veteran’s appeal based on the totality of the record. If the benefit sought is not granted to the fullest extent, the Veteran must be provided a copy of the readjudication and afforded an appropriate opportunity to respond. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. DeBoer, 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.