Citation Nr: 18160450
Decision Date: 12/27/18	Archive Date: 12/26/18

DOCKET NO. 12-02 592
DATE:	December 27, 2018
REMANDED
Entitlement to an effective date of service connection prior to July 30, 2013 for granulomatous infection with pulmonary nodule, left upper lobe, is remanded.
Entitlement to service connection for hemorrhoids is remanded.
Entitlement to service connection for malignant neoplasm is remanded.
Whether new and material evidence has been received to reopen the claim of entitlement to service connection for diverticulosis, to include colon polyp removal, is remanded.
Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a respiratory disability, to include chronic obstructive pulmonary disease (COPD), bronchitis, and asthma, is remanded.
Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a sleep disorder is remanded.
Entitlement to an effective date prior April 15, 2008 for a total disability rating based on individual unemployability (TDIU) is remanded.
REASONS FOR REMAND
The issue of entitlement to an earlier effective date for TDIU was most recently before the Board in September 2016, after it was returned to the Board from the Court of Appeals for Veterans Claims (Court) pursuant to a joint motion for remand.  At that time, the Board noted the Veteran had filed a timely notice of disagreement (NOD) regarding a May 2015 rating decision that granted service connection for granulomatous infection with pulmonary nodule, left upper lobe, effective July 30, 2013, but denied initial service connection claims for hemorrhoids and malignant neoplasm and reopening of service connection claims for diverticulosis, a respiratory disability, and a sleep disorder.  The Board declined to take jurisdiction of the issues addressed in the May 2015 rating decision at the time of its September 2016 remand because it appeared the Agency of Original Jurisdiction (AOJ) was taking further development action regarding the Veteran’s appeals; however, it has now been almost three years since the Veteran filed his NOD regarding the May 2015 rating decision, and the AOJ has yet to issue a statement of the case (SOC) as required by law.  The Board finds it must remand issues 1 through 6 (as enumerated below) for the issuance of SOC.  See Manlincon v. West, 12 Vet. App. 238 (1999); 38 C.F.R. § 19.9(c).
1. Entitlement to an effective date of service connection prior to July 30, 2013 for granulomatous infection with pulmonary nodule, left upper lobe, is remanded.
2. Entitlement to service connection for hemorrhoids is remanded.
3. Entitlement to service connection for malignant neoplasm is remanded.
4. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for diverticulosis, to include colon polyp removal, is remanded.
5. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a respiratory disability, to include COPD, bronchitis, and asthma, is remanded.
6. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a sleep disorder is remanded.
7. Entitlement to an effective date prior April 15, 2008 for TDIU is remanded.
The effective date of TDIU is inextricably intertwined with the other issues being remanded to the AOJ.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a “significant impact” upon another, and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources, the two claims are inextricably intertwined).  A remand, although required due to the intertwined nature of the issues on appeal, will also provide the AOJ the opportunity to review previously unconsidered evidence submitted in October 2018 to ensure the Veteran is afforded due process about his appeal of the effective date assigned for TDIU.  See Disabled Am. Veterans v. Sec'y of Veterans Affairs, 327 F.3d 1339, 1347 (Fed. Cir. 2003).
The matters are REMANDED for the following action:
1. Issue a SOC addressing the effective date of service connection for granulomatous infection with pulmonary nodule, left upper lobe; the initial service connection claims for hemorrhoids and malignant neoplasm; and whether new and material evidence has been received to reopen service connection claims for diverticulosis, to include colon polyp; a respiratory disability, to include COPD, bronchitis, and asthma; and a sleep disorder.  Do not return these issues to the Board unless the Veteran perfects an appeal by submitting a timely substantive appeal after the issuance of the SOC.
2. After completing the step above, reconsider the effective date of TDIU based on all the evidence of record, to include the previously unconsidered evidence submitted by the Veteran in October 2018.  In this regard, please note the Board has previously determined that the Veteran filed an informal TDIU claim as early as August 3, 2007, and that consideration of TDIU is an element of rating any newly service-connected disability because unemployability has been raised by the record.  After reconsidering the effective date assigned for TDIU, issue a supplemental statement of the case prior to returning the matter to the Board.
 
M. HYLAND
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	L. S. Kyle, Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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