Citation Nr: 21072286
Decision Date: 12/02/21	Archive Date: 12/02/21

DOCKET NO. 03-18 437A
DATE: December 2, 2021

REMANDED

Entitlement to a rating higher than 40 percent for a back disability, to include extraschedular consideration, is remanded.

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

REASONS FOR REMAND

The Veteran served on active duty from June 1970 to July 1978.

1. Entitlement to a disability rating higher than 40 percent for a back disability, to include extraschedular consideration is remanded.

In a February 2019 Board Decision, the Agency of Original Jurisdiction (AOJ) was requested to refer the Veteran's claim for increased rating for a back disability to the Under Secretary of Benefits or the Director of the Compensation and Pension Service, for increased rating based on extraschedular consideration. 38 C.F.R. § 3.321(b)(1).  The Board specified that the Director's review and determination should discuss and reconcile the relevant medical evidence of record, to explicitly include the private opinions of record, such as the January 2011 opinion from vocational expert S. P.

In December 2020, the Executive Director, Compensation Service, issued an advisory opinion.  That opinion discussed a single piece of medical evidence, a June 2018 VA examination report.  There was no reconciliation of the relevant medical evidence of record, and there was no mention of the January 2011 opinion from vocational expert S. P.

Therefore, the Board finds that there has not been substantial compliance with the Board's previous remand directives. As such, another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998).

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

Because a decision on the remanded issue of entitlement to an increased rating for a back disability could significantly impact a decision on the issue of a TDIU, the issues are inextricably intertwined.  A remand of the claim for a TDIU is required.  Harris v. Derwinski, 1 Vet. App. 180 (1991).

The matters are REMANDED for the following action:

1. Obtain all VA medical records of treatment to include any hospitalizations.

2. Refer the issues of entitlement to an increased rating for a back disability and entitlement to TDIU to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration pursuant to 38 C.F.R. § 3.321(b) and 38 C.F.R. § 4.16(b).  The review and determination should discuss and reconcile the relevant medical evidence of record, to explicitly include the private opinions of record including the January 2011 opinion from vocational expert S. P.

 

 

Harvey P. Roberts

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	S. Layton, 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.