Citation Nr: 21004058
Decision Date: 01/25/21	Archive Date: 01/25/21

DOCKET NO. 05-00 636
DATE: January 25, 2021

REMANDED

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to August 1, 2016, is remanded.

REASONS FOR REMAND

The Veteran served on active duty from April 1968 to April 1970.  

This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.

This claim was previously before the Board in August 2018, at which time it was remanded for additional development.

Entitlement to a TDIU prior to August 1, 2016

The August 2018 Board remand instructed the RO to obtain an opinion from an appropriate examiner regarding the nature and extent of the industrial impairment attributable to the Veteran’s service-connected disabilities for the entire period prior to August 1, 2016.  Following such an opinion, this claim was to be referred to the Director, Compensation Services, for a determination in the first instance as to whether the assignment of a TDIU on an extraschedular basis is warranted for the period of March 19, 2008, to June 17, 2012.  The Veteran was scheduled for several examinations in January 2020 to assess his service-connected conditions but canceled them and indicated verbally that he did not wish to pursue his claim.  However, his verbal request to withdraw his appeal was never put in writing as required by 38 C.F.R. § 20.204, and the claim was subsequently returned to the Board without the RO ever referring the claim to the Director for an extraschedular opinion.

The Board notes that a TDIU opinion was never requested, nor was the claim submitted to the Director.  Stegall v. West, 11 Vet. App. 268, 271 (1998) (Board remand confers a right on a claimant to compliance with the remand order); see also Dyment v. West, 13 Vet. App. 141, 147 (1999) (clarifying that substantial[]” compliance with Board remand is required).  Therefore, the Board finds that it has no alternative but to remand this matter so that the Veteran can be provided with a TDIU opinion and so this claim can be referred to the Director, Compensation Services for an extraschedular opinion.

The matters are REMANDED for the following action:

1. Obtain an opinion from an appropriate examiner to determine the functional effects of the Veteran’s service-connected disabilities on his ability to work for the period prior to August 1, 2016.

The examiner is asked to opine on the nature and extent of the industrial impairment attributable to the service-connected disabilities for the entire period prior to August 1, 2016.

2. After completing item 2, above, and any other development deemed appropriate in order to adjudicate the issue of entitlement to TDIU, refer the issue to the Director, Compensation Services, for a determination in the first instance as to whether the assignment of a TDIU on an extraschedular basis is warranted for the period of March 19, 2008, to June 17, 2012.

 

 

Michael J. Skaltsounis

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	A. Daniels, 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.