Citation Nr: 21029381
Decision Date: 05/13/21	Archive Date: 05/13/21

DOCKET NO. 17-03 818
DATE: May 13, 2021

REMANDED

A total disability based on individual unemployability (TDIU) prior to November 19, 2015, is remanded.

REASONS FOR REMAND

The Veteran served on active duty from November 1966 to November 1969.  He died in March 2019.  It was determined in August 2019 that the Appellant, his spouse, met the criteria for a substitute claimant.  This matter is on appeal from an October 2015 rating decision denying a higher rating for the Veteran's service-connected left knee osteoarthritis and patellofemoral pain syndrome disability.  In September 2020, the Appellant testified regarding it at a hearing before a member of the Board of Veterans' Appeals (Board).  

In a November 2020 decision, the Board denied a higher rating for the Veteran's aforementioned service-connected left knee disability.  A separate rating for left knee instability was granted, however.  So was a TDIU from November 19, 2015, after that issue was determined to be part of the higher rating claim.  Rice v. Shinseki, 22 Vet. App. 447, 455 (2009).  A TDIU prior to November 19, 2015, was remanded for additional development.  

TDIU Prior to November 19, 2015

Unfortunately, another remand is required prior to adjudicating a TDIU prior to November 19, 2015.  Things indeed are in the same position now as they were at the time of the Board's November 2020 remand.  Adjudicating a TDIU requires consideration of the ratings assigned for service-connected disabilities and the impact they have on the ability to work.  38 C.F.R. § 4.16(a, b).  As such, the issue of a TDIU is inextricably intertwined with pending service connection and higher rating issues.  Harris v. Derwinski, 1 Vet. App. 180, 183 (1991).  The Board noted in its prior remand that the issues of service connection for colon cancer, lymphoma, multiple melanoma, and esophageal cancer residuals were pending.  They specifically were denied in a February 2019 rating decision (notice was sent in March 2019) but awaiting the Higher Level Review (HLR) subsequently requested by the Veteran in March 2019 just prior to his death.  A TDIU prior to November 19, 2015, accordingly was deferred pending resolution of them by the agency of original jurisdiction (AOJ).  

Three rating decisions have been issued since November 2020.  Two implemented the Board's grant of a TDIU from November 19, 2015, and a separate rating for left knee instability.  The third was issued in February 2021 in response to the Appellant's July 2020 request for HLR regarding Dependency and Indemnity Compensation benefits.  None of the rating decisions since the Board's prior remand, in sum, concerned service connection for colon cancer, lymphoma, multiple melanoma, or esophageal cancer residuals.  This means that the request for HLR regarding them is still pending.  There appears to be an unusual delay in addressing it.  While the reason for this delay is not entirely clear, the March 2021 supplemental statement of the case suggests the AOJ may believe it has been addressed already.  This remand should serve to correct that erroneous belief.  A TDIU prior to November 19, 2015, can be readjudicated only after the HLR for the four aforementioned service connection issues is completed.

This matter is REMANDED for the following action:

After completion of the pending March 2019 HLR request concerning service connection for colon cancer, lymphoma, multiple melanoma, and esophageal cancer residuals, readjudicate a TDIU prior to November 19, 2015.  Follow established procedure for returning this matter to the Board if that benefit remains denied.

 

 

Thomas H. O'Shay

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	S. Becker

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.