Citation Nr: 21027469 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 19-28 993 DATE: May 5, 2021 REMANDED Entitlement to total disability based on individual unemployability (TDIU) between April 1, 2016 and December 8, 2018 is remanded. REASONS FOR REMAND The Veteran had active service from October 1964 to October 1967. The Veteran contends that due to service-connected disabilities, he is unemployable and seeks TDIU for the period April 1, 2016 to December 8, 2018. On March 27, 2014, the Veteran applied for entitlement to service connection for myelodysplastic syndrome and chronic myelogenous leukemia (previously acute myeloid leukemia), herein referred to as MDS/AML. The AOJ denied entitlement to service connection and the Veteran perfected an appeal to the Board. In a June 2018 decision, the Board granted the appeal and underlying claim for entitlement to service connection for MDS/AML. In a February 2019 notice letter, the AOJ informed the Veteran of the grant of entitlement to service connection and that MDS/AML was rated at 100 percent from March 27, 2014 and at 30 percent from April 1, 2016. The Veteran submitted a claim for increased rating due to individual unemployability (TDIU) form in March 2019, listing GVDH and eyes as the basis for unemployability. The Veteran also submitted a notice of disagreement in March 2019 for the assigned disability ratings for the newly awarded entitlement to service connection for MDS/AML. In an August 2019 rating decision, the AOJ granted an increased disability rating to 100 percent for the Veteran's MDS/AML from December 9, 2018. The Veteran continued to perfect an appeal and in the VA Form 9 submitted in September 2019, the Veteran asserted that the AOJ should have made a determination on the issue of TDIU. In a March 2020 rating decision, the AOJ denied entitlement to TDIU, either because during one period the Veteran had a 100 percent rating or did not meet the schedular requirements during the other periods. The Veteran appealed. In an April 2020 decision, the Board dismissed the issue of TDIU as moot because the Veteran had been assigned a 100 percent disability rating from December 9, 2018 and stated that the issue of TDIU had not been raised until the submission of the March 2019 TDIU form, accordingly, the prior period was not on appeal. The Veteran appealed this to the Court of Appeals for Veterans Claims (Court). In a December 2020 Joint Motion for Remand (JMR), the parties agreed to vacate the portion of the decision that found that the Veteran's claim for TDIU was moot because the April 2020 Board decision did not address the issue of TDIU being part of the increased rating claim for MDS/AML per Rice in the Veteran's appeal to the grant of service connection and the Court remanded to the Board for a new decision. Rice v. Shinseki (22 Vet. App. 447, 453 (2009)). The Board finds that because the AOJ did not process the Veteran's award for service connection for MDS/AML until February 2019, it was not possible for the Veteran to assert a claim for TDIU based on MDS/AML under the Rice standard prior to that date. The Veteran submitted a timely appeal of the initial assigned ratings for MDS/AML including an assertion that he was unemployable based on the initial date of claim for service connection in March 2014. In Harper, the Court found that a grant of entitlement to TDIU for part of a period on appeal did not bifurcate the underlying increased rating claim from additional period of potential entitlement for TDIU. Harper v. Wilkie, 30 Vet. App. 356 (2018). As relevant in this case, although the AOJ had assigned a 100 percent disability rating for MDS/AML during parts of the appeal period since the 2014 effective date of the grant of service connection, the time period with less than 100 percent rating was still part and parcel of the underlying increased rating claim for MDS/AML and therefore included an appealable issue for denial of TDIU. The Veteran's evaluation for increased rating for MDS/AML has continued and is still being evaluated by the AOJ. At the moment, the Veteran does not meet the schedular evaluation for TDIU, however with new medical evaluations requested that specifically address the period from 2016 to 2018 under appeal here, the Board finds that this issue is inextricably intertwined with the underlying increased rating claim for MDS/AML and it is to the Veteran's benefit to remand this issue. The matter is REMANDED for the following action: 1. The AOJ should complete the actions requested in the April 2020 remand. 2. Thereafter, readjudicate the inextricably intertwined issue of TDIU for the period from April 1, 2016 to December 9, 2018. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Miller, 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.