Citation Nr: 21015633
Decision Date: 03/18/21	Archive Date: 03/18/21

DOCKET NO. 16-01 334
DATE: March 18, 2021

REMANDED

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

REASONS FOR REMAND

The Veteran served on active duty in the United States Marine Corps from March 1970 to April 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2019 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). 

The Board issued a remand in September 2020 instructing the RO to refer the case to the Director of Compensation Service for extra-schedular TDIU consideration. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The RO obtained a December 2020 Advisory Opinion from the Director of Compensation Service. The Board finds the RO substantially complied with the September 2020 remand directives.

However, the Veteran now has an increased rating claim for lumbar radiculopathy pending before the RO. A decision for TDIU could be significantly affected by the development of evidence and a decision on the claim for an increased rating for lumbar radiculopathy. The issues are therefore inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Therefore, the claim cannot be decided at this time and remand is required. 

The matters are REMANDED for the following action:

After the adjudication of the pending appeal for lumbar radiculopathy, reconsider the evidence of record and issue a decision on the Veteran’s claim for entitlement to TDIU. If the outcome is not favorable to the Veteran, issue a supplemental statement of the case. 

 

 

MICHAEL MARTIN

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	T. Harris, Attorney Advisor

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 This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.