Citation Nr: 21001897 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 17-50 418 DATE: January 12, 2021 REMANDED Entitlement to a total disability rating due to individual unemployability (TDIU) prior to October 9, 2020 is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1952 to December 1954. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision issued by a Regional Office (RO) of the U.S. Department of Veterans Affairs (VA). While this appeal was in remand status, the RO granted entitlement to a TDIU effective October 9, 2020. The Board has recharacterized the appellate issue accordingly. The Board remanded this claim in January 2020. In December 2020, the RO notified the Veteran and his attorney that it was returning the appeal to the Board. On December 24, 2020, the attorney asked the Board to wait the full 90 days before issuing a decision to afford her time to submit additional argument and evidence. In December 29, 2020 correspondence, the Board treated this as an extension request (although the full 90 days under 38 C.F.R. § 20.1305(a) had not yet elapsed), and granted the attorney 90 days from the December 29, 2020 notice to submit additional argument and evidence. Although this period has not yet elapsed, this remand does not prejudice the Veteran in any way because this is not a merits decision, and he and his attorney may submit any additional argument and evidence they wish on remand. Moreover, any additional argument or evidence that the Veteran or his attorney may have submitted during this period would not have avoided the need for this remand for procedural reasons; thus, waiting the remaining period would result in additional, needless delay. In April 2020, the Board referred the issue of entitlement to a TDIU to VA’s Director, Compensation Service (Director) for extraschedular consideration under 38 C.F.R. § 4.16(b). A November 2020 memorandum from the RO to the Director indicates that the RO requested extraschedular consideration. However, in December 2020, the RO prematurely returned the appeal back to the Board before receiving the Director’s response. Another remand regrettably is required because the RO did not substantially comply with the April 2020 remand, and the Board is not permitted to adjudicate entitlement to an extraschedular TDIU in the first instance. Stegall v. West, 11 Vet. App. 268, 271 (1998); 38 C.F.R. § 4.16(b). Moreover, while this appeal was in remand status and before the RO returned this appeal to the Board, the RO obtained additional, pertinent evidence. However, the RO failed to issue a Supplemental Statement of the Case (SSOC). 38 C.F.R. § 19.31(c). Therefore, another remand also is required to afford the Veteran procedural due process. The matters are REMANDED for the following action: 1. Unless a response has been received to the November 2020 referral, then refer this claim to the Director, Compensation and Pension Service (or designee) pursuant to 38 C.F.R. § 4.16(b) to consider whether entitlement to a TDIU prior to October 9, 2020 is warranted on an extraschedular basis. This referral is mandatory, although the decision of whether to actually award an extraschedular rating remains with the Director (or designee). 2. Then, readjudicate the claim. If the benefits sought on appeal are not granted to the Veteran’s satisfaction, issue an SSOC that considers all evidence received since the August 2017 Statement of the Case. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Janofsky, 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.