Citation Nr: 21042440
Decision Date: 07/13/21	Archive Date: 07/13/21

DOCKET NO. 10-49 089
DATE: July 13, 2021

REMANDED

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded.

REASONS FOR REMAND

The Veteran served on active duty for training from May 12, 1988, to September 15, 1988, and on active duty from October 1990 to May 1991. 

Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded.

In August 2020, the Board found that the issue of TDIU had been raised by the record as part and parcel of the Veteran's increased rating claim and the issue was added to the appeal.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  The Board remanded the TDIU matter, specifying that it was inextricably intertwined with the increased rating claim for external cutaneous nerve damage of the left lower extremity.  In relevant part, the Board also remanded the claims of entitlement to service connection for a left knee disability (claimed as unspecified joint and muscle pain) and a colon/rectal polyp.

In February 2021, the Board denied entitlement to a compensable rating for external cutaneous nerve damage of the left lower extremity.  The Board also remanded the service connection claims relating to the left knee disability and rectal/colon polyp for further development as the examiners did not comply with the August 2020 remand directives.  Additionally, the Board remanded entitlement to TDIU, noting that it was inextricably intertwined with the issues being remanded.

In June 2021, the Veteran opted into the AMA appellate framework by completing a VA Form 10182 as to claims of entitlement to service connection for a left knee disability and for a rectal/colon polyp.  Because an AMA appeal has been established as to these two issues, only the TDIU issue remains in the legacy framework.  

The TDIU matter is inextricably intertwined with the Veteran's AMA claims noted above.  Harris v. Derwinski, 1 Vet. App. 180 (1991).  Remand of the inextricably intertwined TDIU claim is, thus, required.

Lastly, the Board acknowledges that the Veteran specifically has been asked multiple times to submit a completed VA Form 21-8940 and has been advised that his claim cannot be granted without that form or comparable information.  As such, the Board shall afford the Veteran and his representative another opportunity to submit a completed VA Form 21-8940.  The Board notes that its original request for the Veteran to submit the requested information dates back to the August 2020 Board remand.

The matters are REMANDED for the following action:

1. Provide the Veteran with a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, and advise him to complete and return the form to support his claim for a TDIU.

2. Following the issuance of a decision in the service connection claims for a left knee disability and colon/rectal polyp, which is being addressed through the AMA's Direct Review Lane, and after any additional development that may be warranted, consider the issue of entitlement to a TDIU.

After the completion of any additional development deemed appropriate, readjudicate the claim.  If the benefit sought on appeal is not granted, issue a supplemental statement of the case, provide the Veteran and his representative an opportunity to respond thereto, and then return the matter to the Board for further appellate review.

 

 

GAYLE STROMMEN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	T. Hanson

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.