Citation Nr: 21015284
Decision Date: 03/17/21	Archive Date: 03/17/21

DOCKET NO. 05-13 763
DATE: March 17, 2021

REMANDED

The claim for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), to include on an extraschedular basis is remanded.

REASONS FOR REMAND

The Veteran served on active duty from December 1985 to December 1988. The Board of Veterans’ Appeals (Board) remanded the issue on appeal to the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) in February 2019.  The Veteran appealed the February 2019 decision of the Board to the United States Court of Appeals for Veterans Claims (Court) in regard to entitlement to an increased rating for Reiter’s syndrome. Pursuant to a Joint Motion for Partial Remand (JMPR), the Court, in a February 2020 Order, vacated the Board’s February 2019 decision (as to entitlement to an increased rating for Reiter’s syndrome) and remanded the matter to the Board to ensure compliance to the terms of the JMPR. The Board then remanded the issue of entitlement to a rating in excess of 20 percent for Reiter’s syndrome to the AOJ in August 2020.  However, the AOJ has jurisdiction over the issue of entitlement to an increased rating for Reiter’s syndrome as a VA examination is to be scheduled.

1. Entitlement to a TDIU is remanded

The Veteran claims entitlement to a total disability evaluation based on individual unemployability, in part as due to his service-connected Reiter’s syndrome. Consideration of entitlement to a TDIU is dependent upon the impact of service-connected disabilities on a Veteran’s ability to obtain or retain substantially gainful employment. As noted above, the Board remanded the issue of entitlement to a rating in excess of 20 percent for Reiter’s syndrome for a VA examination in August 2020.  Records show that a VA examination was requested in August 2020 and September 2020: however, records do not show that an examination was scheduled.  The Veteran’s October 2011 application for increased compensation based on unemployability (VA Form 21-8940) noted that Reiter’s syndrome prevented the Veteran from securing or following any substantially gainful employment.  As the severity of the Veteran’s service-connected Reiter’s syndrome is relevant to entitlement to a TDIU, the matter of TDIU is therefore inextricably intertwined with the currently pending claim discussed above. Harris v. Derwinski, 1 Vet. App. 180 (1991). Remand of the inextricably intertwined TDIU claim is therefore required as well.  

The matters are REMANDED for the following action:

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After any indicated development has been completed regarding the Veteran’s Reiter’s syndrome remanded in August 2020, readjudicate the intertwined issue on appeal.  If the benefits sought are not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review.

 

 

MARCELLA COYNE

Acting Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	J. Costello, 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.