Citation Nr: 18159032
Decision Date: 12/18/18	Archive Date: 12/18/18

DOCKET NO. 08-13 355
DATE:	December 18, 2018
REMANDED
Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded.
REASONS FOR REMAND
The Veteran served on active duty for training (ACDUTRA) from September 1993 to January 1994.  In June 2011, a videoconference hearing was held before the undersigned.  In August 2017, the Board adjudicated the Veteran’s claim seeking an increased evaluation for service-connected instability of the right knee and a separate compensable evaluation for dislocated semilunar cartilage of the right knee.  The Veteran then appealed that decision to the United States Court of Appeals for Veterans Claims (Court). 
In May 2018, pursuant to a Joint Motion for Partial Remand (Joint Motion), the parties agreed that a partial vacatur and remand was warranted because the Board erred by failing to provide an adequate statement of reasons or bases for its determination that a TDIU was not reasonably raised by the record.  Further, the parties asked the Court not to disturb the Board’s decision with respect to its grant of entitlement to a separate evaluation for dislocated semilunar cartilage of the right knee.  The Veteran also stated that he was not contesting the Board’s decision with respect to his service-connected right knee instability.

Entitlement to a TDIU is remanded.
The parties agreed in the Joint Motion that a remand was warranted for the Board to adjudicate entitlement to a TDIU in the first instance.  The Veteran maintains that his service-connected right knee disabilities prevent him from securing or following any substantially gainful occupation.  The Veteran has never met the schedular criteria for TDIU consideration under 38 C.F.R. § 4.16 (a).  He has been in receipt of a combined 20 percent disability rating from February 5, 2004, a combined 40 percent rating from June 6, 2006, and a combined 60 percent rating from July 26, 2010.  The Board is prohibited from assigning a TDIU on the basis of 38 C.F.R. § 4.16 (b) in the first instance without ensuring that the claim is referred to VA’s Director of Compensation Service for consideration of an extraschedular rating under 38 C.F.R. § 4.16 (b).  Bowling v. Principi, 15 Vet. App. 1 (2001).  As the record does not show that the Veteran’s claim was ever submitted to the VA’s Director of Compensation Service for extraschedular consideration, remand is warranted.
Since the claims file is being returned it should be updated to include any outstanding VA treatment records.  See 38 C.F.R. § 3.159 (c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992).
The matter is REMANDED for the following action:
1. Obtain and associate with the claims file all outstanding treatment records regarding the Veteran dated from October 2013 to the present.
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2. Refer the claim of entitlement to TDIU to the Director, Compensation Service, for extraschedular consideration pursuant to 38 C.F.R. § 4.16 (b).
 
K. L. WALLIN
Acting Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Jack S. Komperda, Counsel