concurring:
I write separately to express my view that appellant’s claim for an increased rating for service-connected rheumatoid arthritis of multiple joints which was adjudicated by the BVA and the claim for a total disability rating based on individual unemployability (TDIU) which was remanded by the BVA are inextricably intertwined. As the majority acknowledges, ante at 446, both a schedular rating and a TDIU rating are based on the extent to which a disability negatively impacts upon employability. See 38 C.F.R. § 4.1 (1993) (schedular “ratings represent ... the average impairment in earning capacity”); 38 C.F.R. §§ 4.15, 4.16 (1993) (TDIU ratings represent the inability “to follow a substantially gainful occupation”). A TDIU rating which is premised upon a condition which is also the subject of a rating in terms of percentage of disability is inextricably intertwined with the percentage rating. The evidence used to support both ratings must overlap, at least in part, because the inquiry is the same: what is the degree of disability?
Under the finality doctrine announced by the Court in Harris v. Derwinski, 1 Vet.App. 180, 182-83 (1991), and construed in subsequent decisions, see, e.g., Kellar v. Brown, 6 Vet.App. 157, 160 (1994); Clark v. Derwinski, 2 Vet.App. 166, 167 (1992); Hoyer v. Derwinski, 1 Vet.App. 208, 210 (1991), a finding that claims are inextricably intertwined mandates dismissal of the appeal. However, while I support the doctrine which “guard[s] against piecemeal litigation,” ante at 445, I do not support the remedy of dismissing the appeal. This result unfairly punishes an appellant who is proceeding piecemeal not from choice, but because the BVA chose to bifurcate inextricably intertwined claims.
While under Harris, supra, we may not have jurisdiction to review a decision on the merits which represents reviewing less than all inextricably intertwined claims, we do, in my view, have jurisdiction to state that it was error for the BVA to issue a decision on one inextricably intertwined claim, while it remanded another to a regional office (RO). Accordingly, the better result is to vacate and remand the BVA decision as to the claim appealed to the Court for readjudication with the claim already remanded by the BVA to the RO. I concur in the majority’s vacating and remanding of the BVA decision.