Citation Nr: 21064582
Decision Date: 10/20/21	Archive Date: 10/20/21

DOCKET NO. 11-13 586
DATE: October 20, 2021

REMANDED

Entitlement to a total disability rating for individual unemployability due to service-connected disabilities (TDIU) on extraschedular basis is remanded.

REASONS FOR REMAND

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

As pertinent here, in an October 2020 decision, the Board denied entitlement to service connection for hypertension and entitlement to a TDIU.  

The Veteran timely appealed the part of the decision that denied entitlement to a TDIU to the United States Court of Appeal for Veterans Claims (Court), and by a July 2021 Order, the Court granted a Joint Motion for Partial Remand (JMPR).  Specifically, the JMPR found that the Board erred in its finding that there was no sufficient information to decide the claim for entitlement to a TDIU.  The JMPR cited to evidence including November 2009 statements regarding the impact of the service-connected bilateral hearing loss on the Veteran's ability to work, and the 2016 examination report that suggested hearing loss made it difficult to communicate.  

The Board previously determined that the Veteran's failure to submit a VA Form 21-8940 prevented the Board from making a determination regarding the Veteran's unemployability; however, in its July 2016 Remand, the Board directed the RO to develop the Veteran's TDIU claim, to include extraschedular consideration if he did not meet the schedular criteria.  Such development was not undertaken.  Here, the Veteran still does not meet the criteria for entitlement to a TDIU.  Nevertheless, given the above-mentioned evidence, referral for extraschedular consideration is warranted.

Lastly, the Board encourages the Veteran to submit a VA Form 21-8940, which will assist the Direct, the RO, and the Board in adjudicating his claim.

The matters are REMANDED for the following action:

1. Provide the Veteran with a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, with instructions to return the form to the RO.

2. Refer the Veteran's TDIU claim to the Director of Compensation Service or designee for consideration of whether an extraschedular rating is warranted.

 

 

S. B. MAYS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Yaffe, 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 This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.