Citation Nr: 19109167
Decision Date: 02/06/19	Archive Date: 02/06/19

DOCKET NO. 10-42 123
DATE:	February 6, 2019

REMANDED

The issue of entitlement to a total disability rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) is remanded.

REASONS FOR REMAND

The Veteran, who is the appellant, had active service from April 1966 to November 1968.

This matter came before the Board of Veterans’ Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston Salem, North Carolina.

In an October 2017 decision, the Board granted an increased disability rating for service connected bilateral hearing loss, found no clear and unmistakable error (CUE) in a prior March 1992 RO rating decision, and remanded the question of entitlement to a TDIU for further development.  For the reasons discussed below, the Board must once again remand the issue of entitlement to a TDIU.

Entitlement to a TDIU

TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.  38 C.F.R. § 4.16(a),(b).  If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. § 4.16(a).  If a veteran’s disabilities do not meet the objective combined rating percentage criteria of 38 C.F.R. § 4.16(a), it then becomes necessary to consider whether the criteria for referral for extraschedular consideration are met under § 4.16(b) criteria.  Submission to the Director, Compensation and Pension Service, for extraschedular consideration is warranted in all cases of veterans who are unemployable by reason of service connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a).  38 C.F.R. § 4.16(b).  A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders.  

Per the prior October 2017 remand, the Board directed that the instant matter be referred to the Director of VA’s Compensation Service for consideration of an extraschedular TDIU.  Review of the record reflects that this referral has yet to be made.  As such, the Board must once again remand the question of entitlement to a TDIU to allow the Director of VA’s Compensation Service to consider an extraschedular TDIU in the first instance.

The matter is REMANDED for the following action:

1. Refer the matter to the Director of Compensation Service for consideration of whether a TDIU is warranted pursuant to 38 C.F.R. § 4.16(b).

 

2. Then, readjudicate the issue of entitlement to a TDIU.  If the benefit sought on appeal remains denied, the Veteran and representative should be provided a supplemental statement of the case (SSOC).  An appropriate period of time should be allowed for response before the case is returned to the Board.

 

J. PARKER

Veterans Law Judge

Board of Veterans’ Appeals

ATTORNEY FOR THE BOARD	E. Blowers, Counsel