Citation Nr: 21070014
Decision Date: 11/22/21	Archive Date: 11/22/21

DOCKET NO. 20-17 973
DATE: November 22, 2021

REMANDED

A total disability rating based on individual unemployability (TDIU) is remanded.

REASONS FOR REMAND

The Veteran served on active duty from September 1962 to May 1974 with additional service in the Reserves.

This case is before the Board of Veterans' Appeals (Board) on appeal from a June 2018 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO).

The Board remanded this matter for further development in May 2020, September 2020, February 2021, and July 2021, including a referral to the Director of Compensation Service for extraschedular consideration.

In July 2021, the Director of Compensation Service recommended denial of entitlement to Individual Unemployability on an extra-schedular basis.  Notably, in Wages v. Shinseki, the Court held that a decision from the Director of Compensation and Pension Services "is in essence the de facto decision of the agency of original jurisdiction and, as such, is not evidence... It is simply a decision that is adopted by the [regional office] and reviewed de novo by the Board." 27 Vet. App. 233, 239 (2015).

In an October 2021 correspondence, the Veteran's representative argues that the issue of entitlement to a TDIU should be remanded as the Veteran has pending claims for an increased evaluation for his service-connected coronary artery disease, nummular eczema, sinus condition, and hypertension; and that when those claims are adjudicated, the Veteran will meet the schedular requirements for a TDIU.

Indeed, the increased rating claims are being processed under the Appeals Modernization Act (AMA) framework.  The increased rating claims are inextricably intertwined with entitlement to a TDIU as the outcome of the increased rating claim may affect the TDIU claim, to include whether his combined disability rating meets the schedular threshold for a TDIU.  The Board defers consideration of the matter.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991).

The matter is REMANDED for the following action:

After any necessary development and adjudication of the increased rating and earlier effective date claims currently on appeal under the AMA framework, readjudicate the TDIU issue that remains on appeal.

 

 

R. FEINBERG

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	S. Costa, 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.