Citation Nr: 21005327 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 06-00 916 DATE: February 1, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability as a result of service-connected disabilities (TDIU) prior to July 25, 2011, on the basis of substitution, is remanded. Entitlement to special monthly compensation (SMC) from December 2, 2009, to July 25, 2011, on the basis of substitution, is remanded. REASONS FOR REMAND The Veteran had active service from October 1963 to August 1967. The Veteran died in December 2017. The appellant is the Veteran’s surviving spouse and has been substituted as the claimant for the issues on appeal. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a January 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In April 2017, the Board determined that the issue of a TDIU had been raised by the record, but was limited for the period prior to July 25, 2011, and excluded the Veteran’s service-connected prostate cancer, which was rated 100 percent from December 2, 2009. The issue of special monthly compensation (SMC) was also limited for the period between December 2, 2009, and July 25, 2011. These matters were previously remanded by the Board in April 2017, January 2019, May 2019, and September 2020 for further development. A remand by the Board imposes a concomitant duty to ensure compliance with the terms of the remand. Where the remand orders are not complied with, the Board itself errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Furthermore, the appellant has not expressed a desire to abandon the claims regarding whether a TDIU is warranted prior to July 25, 2011, and whether SMC was warranted from December 2, 2009, to July 25, 2011. As such, the appeals for a TDIU and SMC continue. Harper v. Wilkie, 30 Vet. App. 356 (2018). For the reasons discussed below, the Board finds that the remand directives have not been complied with. Accordingly, remand is warranted to ensure substantial compliance The Veteran was in receipt of a 100 percent evaluation for prostate cancer effective December 2, 2009. The award of a 100 percent rating does not necessarily render moot a claim of entitlement to a TDIU. Bradley v. Peake, 22 Vet. App. 280 (2008). A separate TDIU predicated on one disability (although perhaps not ratable at the schedular 100-percent level) when considered together with another disability separately rated at 60 percent or more could warrant SMC. Thus, it might benefit the appellant to retain or obtain the TDIU even where a 100 percent schedular rating also has been granted. Bradley, at 293-94. Indeed, VA must consider a TDIU claim despite the existence of a schedular total rating and award SMC under 38 U.S.C. § 1114(s) if VA finds the separate disability supports a TDIU independent of the other 100 percent disability rating. Bradley, at 293-94. In May 2019 and September 2020 remands, the Board directed the RO to refer the issue of entitlement to a TDIU for prior to July 25, 2011, to the Director of Compensation Services for consideration of an extraschedular consideration. The RO declined to comply with this remand directive. As set forth in Stegall, the Board’s remand directives require substantial compliance. It is the responsibility of the Agency of Original Jurisdiction (AOJ) to comply with the Board’s remand directives so that the Board may adjudicate the claims currently on appeal before the Board. Accordingly, the RO is instructed to refer the claim for a TDIU to the director of compensation services for extraschedular consideration as directed in the May 2019 and September 2020 Board remands. The claim for entitlement to SMC from December 2, 2009, to July 25, 2011, is inextricably intertwined with the claim for a TDIU prior to July 25, 2011, and is therefore remanded. The matters are REMANDED for the following action: Refer the Veteran’s claim for a TDIU prior to July 25, 2011, to VA’s Director of Compensation Services for extraschedular consideration. Kelli A. Kordich Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Berryman, 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.