Citation Nr: 20046950
Decision Date: 07/14/20	Archive Date: 07/14/20

DOCKET NO. 14-10 845
DATE: July 14, 2020

REMANDED

Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability, to include on an extraschedular basis, is remanded. 

REASONS FOR REMAND

The Veteran served on active duty from November 1988 to November 1992.

This appeal comes before the Board of Veterans’ Appeals (Board) from an October 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. 

In July 2018, the Board remanded the claim of entitlement to a TDIU, to include on an extraschedular basis, for further development. 

Entitlement to a TDIU due to service-connected disability, to include on an extraschedular basis, is remanded. 

The Veteran contends, among other things, that his service-connected right knee disabilities prevent him from securing or maintaining substantially gainful employment.

For reasons explained below, the Board finds that remand is necessary.

As noted above, in July 2018, the Board remanded the claim. The remand directives provided that the claim was to be referred to the Director of Compensation Service (Director) for extraschedular consideration.

In November 2019, the Director deferred extraschedular consideration. In this regard, she reasoned that in a November 2019 Board decision, the Board granted a 10 percent evaluation for right knee instability and remanded the claim of entitlement to a rating in excess of 10 percent for right knee osteoarthritis status post-arthroscopy with scars (hereinafter right knee disability) for a retrospective opinion. Thus, the Director concluded that prior to extraschedular consideration being given, all avenues of schedular compensation must first be considered.

Given the above, the Board finds that the claim of entitlement to a TDIU due to service-connected disability, to include on an extraschedular basis, is inextricably intertwined with the claim of entitlement to a rating in excess of 10 percent for right knee disability, which is currently pending with the agency of original jurisdiction. Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Therefore, adjudication is deferred pending the outcome of the claim.

The matter is REMANDED for the following action:

Complete the November 2019 Board requested development on the claim of entitlement to a rating in excess of 10 percent for right knee disability.

(a)	If the Veteran still does not meet the percentage evaluation requirements under 38 C.F.R. § 4.16(a), then refer the claim of entitlement to a TDIU to VA’s Director of Compensation Service for extraschedular consideration.

(b)	If the Veteran meets the percentage evaluation requirements under 38 C.F.R. § 4.16(a), then readjudicate the claim of entitlement to a TDIU.

 

 

C.A. SKOW

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	A. Griffey, Associate Counsel

The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.