Citation Nr: 21010010 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 14-32 195A DATE: February 23, 2021 REMANDED Entitlement to an effective date prior to August 6, 2013 for the award of a total disability rating based on individual unemployability (TDIU) due to service-connected conditions is remanded. REASONS FOR REMAND The Veteran served on active duty with the Army from September 1976 to January 1988. The Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing in October 2017. A transcript of the proceeding has been associated with the claims file. The Board previously remanded this case in March 2018 and July 2020 for further development. In the July 2020 decision, the Board determined that the Veteran’s TDIU claim has been pending since August 2004. Unfortunately, this case must be returned as the agency of original jurisdiction (AOJ) did not comply with all of the remanded directives. In this regard, the Board expressly directed that the Veteran’s claim for entitlement to a TDIU prior to August 6, 2013 be referred to VA’s Director of Compensation Service for extraschedular consideration. The Board cited to lay and medical evidence to support why such referral was necessary. However, despite the evidence cited, inexplicably, the AOJ determined that the Board referral was not warranted. Moreover, the AOJ applied the wrong standard in finding that referral was not necessary. The AOJ cited to 38 C.F.R. § 3.321(b), which applies to extraschedular consideration when rating a single disability. In this regard, the AOJ found that the there was no marked interference with employment or frequent hospitalizations in this case. However, again, this requirement applies to extraschedular consideration of a single disability under the rating criteria. Rather, here, the correct standard is under 38 C.F.R. § 4.16(b), which states that referral should be done in cases where veterans who are unemployable by reason of service-connected disabilities but fail to meet the percentage standards for a TDIU as in the instant case. Importantly, the Board errs when it fails to ensure substantial compliance with a Board remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (Board remand confers a right on a claimant to compliance with the remand order); Dyment v. West, 13 Vet. App. 141, 147 (1999) (clarifying that substantial compliance with Board remand is required). Where the Board fails to ensure substantial compliance, remand is appropriate. Stegall, 11 Vet. App. at 271. Accordingly, this matter must be remanded to ensure compliance with the prior Board remand. The matters are REMANDED for the following action: Refer the Veteran’s claim for entitlement to a TDIU prior to August 6, 2013 to VA’s Director of Compensation Service for extraschedular consideration. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.N. Moats 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.