Citation Nr: 21064128
Decision Date: 10/19/21	Archive Date: 10/19/21

DOCKET NO. 17-40 050A
DATE: October 19, 2021

REMANDED

Entitlement to a total rating based on individual unemployability (TDIU) is remanded.

REASONS FOR REMAND

The Veteran served honorably on active duty in the United States Navy from July 1988 to January 2001.

This issue was before the Board in January 2020 when it was remanded for additional development.  The Board finds that the additional development has not been completed and a remand is necessary.  Stegall. V. West, 11 Vet. App. 268 (1998).

Entitlement to a total rating based on individual unemployability (TDIU) is remanded.

In the previous remand directives, the Board directed the agency of original jurisdiction (AOJ) to, "Send another request to the Veteran's former employer, utilizing correct spelling of the name of the employer, for the Veteran's employment records and/or to return of a completed VA Form 21-4192."  Although Harland Clarke returned a VA Form 21-4192 in June 2020, it was not considered in the July 2020 supplemental statement of the case (SSOC).  The Board also directed that the Veteran's current VA treatment records and private treatment records be obtained, to include an August 5, 2013 letter from the Veteran's private physician stating that the Veteran was unable to work.  This was not done.

In addition, the Board notes that the issue of extraschedular TDIU was raised in the previous remand, however, the AOJ did not refer the claim to the Director, Compensation and Pension Service, and did not explain why that action was not undertaken.  The Board is not permitted to award an extraschedular TDIU without first referring the issue to the Director, Compensation and Pension Service.  Of note, the Veteran does not currently meet the schedular criteria for a TDIU.  Moreover, the period of time on appeal for which it appeared that the Veteran did meet the schedular requirement was based on clear and unmistakable error in awarding the Veteran a rating for both asthma and sleep apnea in contravention of the regulation against pyramiding.  38C.F.R. §4.96(a), Diagnostic Codes 6847 and 6602, see also January 2020 Board decision.  At this point, the Board explicitly makes no finding, positive or negative, as to whether a TDIU is warranted for any period during the appeal.  The Board is referring the Veteran's claim to the Director in the interest of judicial economy, not because it has determined that such a claim is warranted or will be warranted in the future.

The matters are REMANDED for the following action:

1. Obtain the Veteran's VA treatment records for the period since September 2019. 

2. Ask the Veteran to complete a VA Form 21-4142 for Floyd Memorial Hospital and Health Services, or any other relevant medical provider, to include the Veteran-identified August 5, 2013 letter from a private physician stating the Veteran was unable to work, see August 13, 2013 Report of General Information.  Make two requests for the authorized records from any identified medical provider, unless it is clear after the first request that a second request would be futile. 

3. Then, refer the claim to the Director of VA Compensation Service for extraschedular consideration.

4. Thereafter, readjudicate the issue of entitlement to a TDIU.

 

 

T. REYNOLDS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	L. Nelson

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.