Citation Nr: 21004388
Decision Date: 01/27/21	Archive Date: 01/27/21

DOCKET NO. 14-09 597
DATE: January 27, 2021

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 in the United States Army from May 1968 to September 1976. 

In his February 2014 VA Form 9, the Veteran requested a videoconference hearing. However, in December 2016 the Veteran withdrew that request.  Therefore, the Board finds that the Veteran has withdrawn his request for a hearing.

In January 2020, the Board remanded the claim for further development and adjudication.  The Board finds that the Agency of Original Jurisdiction (AOJ) has substantially complied with the remand orders and no further action is necessary in this regard.  See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board’s remand instructions were substantially complied with), aff’d, Dyment v. Principi, 287 F.3d 1377 (2002).  However, despite the compliance, the Board finds that an additional remand is necessary in order to fully adjudicate the Veteran’s claim. 

Entitlement to a TDIU due to service-connected disabilities is remanded. 

Although the Board regrets the additional delay, another remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration.  38 U.S.C. § 5103A; 38 C.F.R. § 3.159.

The Veteran alleges that he is unable to work due to his service-connected disabilities.  However, the Board notes that the Veteran does not meet the disability rating percentage threshold for schedular TDIU consideration.  38 C.F.R. §§ 4.16 (a) (if a veteran is service-connected for more than one disability, at least one must be rated at 40 percent disabling, and the total combined disability rating must be at least 70 percent), 4.25.  Nevertheless, even when a veteran does not meet the percentage standards for schedular TDIU, he may be considered for TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16 (b).  However, the Board does not have the authority to assign extraschedular TDIU in the first instance.  38 C.F.R. § 4.16 (b).  Rather, the Board may only consider whether referral for extraschedular TDIU to the Director, Compensation Service is appropriate.  As the Veteran has alleged that he is unemployable due to his service-connected disabilities while not meeting the schedular criteria, the Board finds referral is appropriate. 

Due to the amount of time which will pass on remand, updated treatment records should be obtained and associated with the record. 

The matter is REMANDED for the following action:

1.  Obtain updated treatment records. 

(Continued on the next page)

 

2.  Refer the issue of entitlement to TDIU, to the Director, Compensation Services for extraschedular TDIU consideration.

3.  Thereafter, if entitlement to TDIU on an extraschedular basis is denied, readjudicate the appeal.

 

 

L. M. BARNARD

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	J. Unger, 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.