Citation Nr: 21040265
Decision Date: 07/02/21	Archive Date: 07/02/21

DOCKET NO. 09-14 431
DATE: July 2, 2021

REMANDED

Entitlement to a total disability rating based on individual unemployability (TDIU) prior to October 31, 2020, is remanded.

REASONS FOR REMAND

The Veteran had active service from August 1994 to January 1996.

In April 2010, the Veteran testified at a hearing before a Veterans Law Judge who is no longer employed at the Board.  A transcript of the hearing is associated with the record.

An May 2021 letter informed the Veteran that the judge who conducted the April 2010 hearing is no longer employed at the Board, and provided her an opportunity to have another hearing before a different Veterans Law Judge.  The letter also informed the Veteran that if she did not respond within 30 days from the date of the letter, the Board would assume that she does not want another hearing and would proceed accordingly.  The Veteran has not responded to the letter or otherwise indicated that she would like another Board hearing.  In addition, more than 30 days have elapsed from the date of the May 2021 letter.  Therefore, the Board will proceed with appellate consideration.

The Board remanded the issue of entitlement to a TDIU in December 2017.  In January 2021, the Regional Office (RO) issued a rating decision granting, among other things, entitlement to a TDIU from October 31, 2020.  The issue of entitlement to a TDIU during the relevant rating period for the Veteran's ongoing appeals for increased ratings for service-connected right and left foot disabilities prior to October 31, 2020, remains on appeal.  See Harper v. Wilkie, 30 Vet. App. 356 (2018); see also Rice v. Shinseki, 22 Vet. App. 447 (2009).

Entitlement to a TDIU prior to October 31, 2020, is remanded.

In March 2021, the Board remanded the Veteran's appeal for increased ratings for residuals of stress fractures of the first metatarsal of the left and right feet and for calcaneal spurs, degenerative arthritis, and hallux rigidus of the left and right feet.  Those issues currently remain in remand status as the RO completes the actions directed in the March 2021 remand.  A decision on the increased rating issues remanded in March 2021 could significantly impact a decision on the issue of entitlement to a TDIU prior to October 31, 2020.  Therefore, the issues are inextricably intertwined.  A remand of the appeal for entitlement to a TDIU prior to October 31, 2020, is required so it can be adjudicated along with the increased rating issues remanded by the Board in March 2021.

The matter is REMANDED for the following action:

Complete the actions directed in the March 2021 Board remand as to the appeal for increased ratings for residuals of stress fractures of the first metatarsal of the left and right feet and for calcaneal spurs, degenerative arthritis, and hallux rigidus of the left and right feet.  Also complete any additionally indicated development.  Thereafter, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to a TDIU prior to October 31, 2020.  If the any benefit sought is not granted to the Veteran's satisfaction, send the Veteran and her 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.

 

 

MICHAEL MARTIN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	T. J. Anthony, 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.