Citation Nr: 21067047
Decision Date: 11/03/21	Archive Date: 11/03/21

DOCKET NO. 16-14 189
DATE: November 3, 2021

REMANDED

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

REASONS FOR REMAND

The Veteran had active duty service from October 1961 to October 1963.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).

The issue of entitlement to a TDIU was denied in a November 2020 Board decision.  The Veteran appealed to the US Court of Appeals for Veterans Claims (CAVC) and the parties agreed to a Joint Motion for Partial Remand (JMR).  CAVC granted the JMR in a July 2021 Order.  

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

The Board notes that the Social Security Administration (SSA) indicated that it did not have records for the Veteran in October 2017.  However, subsequently, in an April 2018 statement, the Veteran indicated that he was receiving social security disability benefits and requested that VA resubmit their request for his records.  Accordingly, the Board finds that the records are pertinent to the pending issue and should be requested on remand.  

Moreover, the Veteran submitted an application for TDIU in April 2015 and indicated that he worked as a fleet administrator until 1999.  However, subsequent records reveal that the Veteran worked as a truck driver in 2007 and was unable to work due to his service-connected left knee disability.  Accordingly, the Board finds that an updated TDIU application should be requested on remand.  

Lastly, the Board notes that from October 19, 2017, the Veteran meets the schedular requirements for entitlement to a TDIU.  However, the Veteran's combined disability rating prior to October 19, 2017, is 60 percent.  Thus, he does not meet the threshold requirement for a TDIU.  Nevertheless, VA's policy is to rate totally disabled all veterans who are unemployable.  In such cases, the rating boards should submit the case to the Director, Compensation Service for extraschedular consideration.  See 38 C.F.R. § 4.16(b).  In the present case, VA examinations in September 2015 and March 2016 indicate that his service-connected disabilities, including lumbar spine disability, bilateral knee disability, and hearing loss impact his ability to work prior to October 19, 2017.  Therefore, the claim of entitlement to a TDIU prior October 19, 2017, must be referred to the Director, Compensation Service.

The matter is REMANDED for the following actions:

1. Obtain and associate with the claims file the Veteran's updated VA treatment records from July 2021 to the present.  

2. Obtain and associate with the claims file the Veteran's records from the Social Security Administration (SSA).  Document all attempts to obtain the records in the file.  

3. Provide the Veteran with the VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, and instruct him to complete this form with regard to his employment for the period from 1999 to the present, including any truck driving work in 2007.

4. Thereafter, refer the claim for a TDIU to the Director, Compensation Service for the period prior to October 19, 2017, and notify the Veteran and his representative of such action.

 

 

Eric S. Leboff

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	S. Merrick

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.