Citation Nr: 21023216
Decision Date: 04/20/21	Archive Date: 04/20/21

DOCKET NO. 11-11 018
DATE: April 20, 2021

REMANDED

Entitlement to a total disability evaluation based on individual unemployability (TDIU) prior to June 17, 2014, on an extraschedular basis, is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the United States Army from January 1972 to February 1974, and from December 1982 to April 2001. 

This matter comes before the Board of Veterans Appeals (Board) from an April 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). 

The issue of TDIU was initially raised by the Veteran in an October 2011 Board hearing. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In May 2017, the Veteran and his representative were sent a letter notifying them that the Veteran’s Law Judge (VLJ) who presided over the October 2011 hearing was no longer employed by the Board and offered another hearing before a different VLJ.  The letter notified the Veteran that he had 30 days from the date of the letter to respond and that if no response was received the Board will assume the Veteran does not want another hearing and the Board will proceed accordingly.  The Veteran did not respond to the letter.  As such, the Board will consider the case on the evidence of record. 

The Board notes that the Veteran does not meet the threshold required for TDIU on a schedular basis prior to June 17, 2014.  When these percentage standards are not met, consideration may be given to entitlement on an extraschedular basis, taking into account such factors as the extent of the service-connected disability, and employment and educational background.  It must be shown that the service-connected disability produces unemployability without regard to advancing age.  38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, 4.19.

In November 2020, the Board remanded this matter for a referral to the Director of Compensation Service, for consideration of a TDIU on an extraschedular basis, as the Board itself cannot assign an extraschedular rating in the first instance. Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). Unfortunately, there has not been substantial compliance with the Board’s previous remand directives regarding the issue of extraschedular TDIU; thus, another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998).

In December 2020 and January 2021, the RO mailed the Veteran and his representative VA Form 21-8940 Veterans Application for Increased Compensation Based on Unemployability. To date, this form has not been returned to the RO. The RO issued a supplemental statement of the case (SSOC) in February 2021, stating without the completed VA Form 21-8940, TDIU prior to June 17, 2014 cannot be considered. However, there is no evidence in the record that the case was referred to the Director as directed in the Board’s remand. As the issue of TDIU was raised by the record, VA Form 21-8940 is not required to submit the case to the Director for extraschedular consideration. Thus, a remand is warranted for an extraschedular opinion from the Director. 

This matter is REMANDED for the following action:

Refer the Veteran’s case to VA’s Director of Compensation Service for extraschedular consideration of the Veteran’s TDIU claim prior to June 17, 2014, pursuant to 38 C.F.R. § 4.16(b). 

 

B. G. LeMoine

Acting Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	C. Townsend, 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.