Citation Nr: 21023551 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 09-09 085 DATE: April 20, 2021 REMANDED The issue of an entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran had active duty in the United States Navy from August 2004 to May 2007. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2008rating decision issued by the Department of Veterans Affairs (VA) Regional Office(RO) in Indianapolis, Indiana. This issue was previously before the Board. In December 2020, the Board remanded the appeal to the agency of original jurisdiction (AOJ) for additional development. Following evidentiary development, the VA Appeals Management Center (AMC) continued the previous denials in a supplemental statement of the case (SSOC) issued in February 2021. The Veteran’s VA claims file has been returned to the Board for further appellate proceedings. Entitlement to a total disability rating based on individual unemployability (TDIU) In its December 2020 decision, the Board remanded the claim of entitlement to a TDIU after observing that the Veteran did not meet the schedular eligibility requirement for a TDIU. 38 C.F.R. § 4.16(a). The Board directed the agency of original jurisdiction (AOJ) to refer the claim to the Director of Compensation Services (Director) for extraschedular consideration, if and only if the Veteran completed and returned the VA Form 21-8940. 38 C.F.R. § 4.16(b). Following the Board’s remand directives, the AOJ notified the Veteran on January 4, 2021 to complete and return the enclosed VA Form 21-8940 and, if possible, VA Form 21-4192. The AOJ also notified the Veteran, in bold font, that it “may make a decision on your claim after 30 days.” On February 8, 2021, or 35 days after notifying the Veteran, the AOJ issued an SSOC denying the claim as the Veteran had not completed and returned VA Form 21-8940. On the same day, the Veteran completed and returned the VA Form 21-8940. The Board recognizes that VA policy instructs the AOJ to administratively deny a TDIU claim when a veteran fails to complete and submit a VA Form 21-8940. The Board is not bound by these administrative provisions. See 38 U.S.C. § 38 C.F.R. § 19.5 (stating that in considering appeals, the Board is bound by applicable statutes, regulations of the Department of Veterans Affairs, and precedent opinions of the General Counsel of the Department of Veterans Affairs; it is not bound by Department manuals, circulars, or similar administrative issues). In the present case, the Board finds that there is sufficient evidence in the record now for the AOJ to refer the Veteran’s claim to the Director, Compensation Service for extraschedular TDIU consideration. Accordingly, the Board will remand the case for referral to the Director, Compensation Service, for consideration of entitlement to a TDIU. 38 C.F.R. § 4.16(b). The Veteran is also reminded that the duty to assist is not a one-way street and that he is ultimately responsible for completing and returning these records in a timely manner. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (“The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.”); 38 C.F.R. § 3.655(a), (b). The matter is REMANDED for the following actions: 1. Refer the Veteran’s claim of entitlement to a TDIU to the Director of Compensation Services for extraschedular consideration. 2. Thereafter, readjudicate the claim. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Yun, 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.