Citation Nr: 21008141
Decision Date: 02/11/21	Archive Date: 02/11/21

DOCKET NO. 13-00 437A
DATE: February 11, 2021

ORDER

Entitlement to an extraschedular total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities prior to April 3, 2009 is remanded.

Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities from April 3, 2009, to July 30, 2012, is remanded.

Entitlement to special monthly compensation (SMC) housebound rate under 38 U.S.C. § 1114(s) is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the United States Navy from December 2004 to October 2008.

This appeal comes before the Board of Veterans’ Appeals (Board) from a July 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), in San Diego, California. 

The Board remanded the Veteran’s claim in June 2017 for additional development and the RO issued an October 2018 supplemental statement of case (SSOC). The Board issued a February 2019 decision denying the claim. In January 2020, the U.S. Court of Appeals for Veterans Claims (CAVC) entered a Joint Motion for Remand (JMR) and the case was returned to the Board. 

The Veteran was sent notice in September 2020 that his Veterans Law Judge was no longer available and that he had the right to a new hearing prior to a decision; the Veteran responded October 2020 and waived his right. 

1. Entitlement to an extraschedular total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities prior to April 3, 2009 is remanded.

2. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities from April 3, 2009 to July 30, 2012 is remanded.

3. Entitlement to special monthly compensation (SMC) housebound rate under 38 U.S.C. § 1114(s) is remanded. 

In January 2013 the Veteran filed his Form 9 appeal and the claim was certified to the Board in June 2014, after which time additional records were added to the claims file by the RO including Vocational Rehabilitation and Education records. The additional pertinent evidence was not previously considered in a decision by the agency of original jurisdiction (AOJ). In December 2020, VA requested a waiver from the Veteran in order for the Board to review the evidence in the first instance but received no response. Therefore, a remand is warranted for issuance of a supplemental statement of case (SSOC) addressing the claim for TDIU and SMC. See 38 U.S.C. § 7105(e) (as in effect prior to Feb. 19, 2019).

The matters are REMANDED for the following action:

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Review the evidence received since issuance of the last supplemental statement of case. If the claim is not fully granted, an additional supplemental statement of case should be issued regarding the claim for service connection for both schedular and extraschedular TDIU and SMC and the claims file should then be returned to the Board for further appellate consideration.

 

 

J. B. FREEMAN

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	C. Aubee, Associate 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.