Citation Nr: 1736557	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  07-34 691	)	DATE

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana


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


Appellant represented by:	Madonna Richardson, Agent


M. Nye, Associate Counsel


The Veteran served on active duty from August 1969 to March 1971.

This case initially came to the Board of Veterans' Appeals (Board) from a July 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana.  In that decision, the RO denied the Veteran's request for an increased disability rating for service-connected diabetes mellitus, Type II.  The Veteran appealed that decision.  During the proceedings concerning that appeal, the Veteran asserted that he was unable to work due to his service-connected disabilities, raising the issue of his potential eligibility for TDIU.  See Rice v. Shinseki, 22 Vet. App. 447, 454 (2009).

In his substantive appeal (VA Form 9), the Veteran requested a hearing before a Veterans Law Judge.  Because he withdrew his hearing request in a written statement, dated November 2007, this case may proceed without a hearing.  38 C.F.R. § 20.704(e) (2016).

In May 2011, the Board issued a decision and remand, denying an increased rating for diabetes mellitus, type II.  The Board remanded the TDIU issue together with a separate claim for service connection for hyperhidrosis, which was remanded for issuance of a statement of the case (SOC) pursuant to Manlincon v. West, 12 Vet. App. 238 (1999).  The issue of TDIU was remanded for a new examination and because the TDIU claim was intertwined with the service connection claim.  On remand, the Agency of Original Jurisdiction (AOJ) denied service connection for hyperhidrosis and, although the Veteran filed a notice of disagreement, he did not file a timely substantive appeal after the AOJ issued a statement of the case in April 2016.  Thus, service connection for hyperhidrosis is no longer part of this appeal.  

For the reasons below, the appeal is REMANDED to the AOJ.  VA will notify the appellant if further action is required.


VA will grant a total disability rating when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from securing and following substantially gainful employment consistent with his education and occupational experience.  38 C.F.R. §§ 3.340, 3.341, 4.16 (2016).

If there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more.  38 C.F.R. § 4.16(a).

The Veteran has three service-connected disabilities: 1) diabetes mellitus, type II (rated as 20 percent disabling); 2) skin condition claimed as chloracne (10 percent); and 3) hypertension (10 percent).  In other words, he does not currently meet the schedular criteria for TDIU.

However, in July 2017, the Veteran submitted a new application for several claimed service-connected disabilities, including pain and numbness of the hands, arms, feet and legs, claimed as secondary to his service-connected diabetes, and back pain.  These claims, particularly the back claim, may help to establish his eligibility for a TDIU rating.  The record indicates that, in August 1994, the Social Security Administration (SSA) determined that the Veteran met their criteria for disability based on a back disability.  

The appeal of the denial of a TDIU rating is inextricably intertwined with the service connection claims pending before the AOJ because the service connection claims could potentially affect whether the Veteran is eligible to receive a TDIU rating.  The appropriate remedy when a pending claim is inextricably intertwined with an issue on appeal is to defer adjudication of the claim on appeal pending the adjudication of the inextricably intertwined claim.  See Smith v. Gober, 236 F.3d 1370, 1372 (Fed. Cir. 2001); Henderson v. West, 12 Vet. App. 11, 20 (1998).   The Board will remand the Veteran's TDIU appeal pending the adjudication of the intertwined issues.  
On remand, the AOJ should ask the Veteran to provide updated information concerning his employment history.  Following the instructions of the Board's May 2011 remand, the AOJ obtained a medical report from a VA nurse practitioner commenting on the effect of the Veteran's service-connected disabilities on his ability to work.  The examiner indicated that the Veteran had retired in 1994.  But according to a December 2008 VA examination report, the Veteran had been working as a bus driver less than one year before that examination.  This report suggests that updated employment information may be helpful.  

Accordingly, the case is REMANDED for the following action:

1. Adjudicate the claims raised by the Veteran in his July 2017 VA Form 21-526EZ.  Should the Veteran disagree with an action taken with respect to these claims, he is advised that he must file a notice of disagreement within one year of notification of the adverse action.  The Veteran is advised that, to vest the Board with jurisdiction over these issues, a timely Substantive Appeal (completed and signed VA Form 9 or equivalent) must be filed after issuance of a Statement of the Case.  See 38 C.F.R. § 20.202 (2016).

2.  Provide the Veteran with a VA Form 21-8940 and request that he provide all available information regarding his employment history. The AOJ should also request authorization to obtain employment information from any current and former employers identified by the Veteran.  If the Veteran provides sufficient identifying information and the appropriate authorization, the AOJ should attempt to contact current and former employers to obtain information about the conditions of his current and former employment, including wage and hour information. An appropriate period of time should be allowed for response.

3. The AOJ should conduct any development that may be indicated with respect to the issue of entitlement to TDIU as a consequence of the outcome of the pending service connection claims, received by the AOJ in July 2017.

4. After the pending claims for service connection have been resolved, the AOJ should review the record and consider the Veteran's eligibility for TDIU.  If the benefit sought remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case addressing the TDIU claim and be given an opportunity to respond before the record is returned to the Board for further review.  

The appellant has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).

Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. § 20.1100(b) (2016).


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