Citation Nr: 21027105
Decision Date: 05/04/21	Archive Date: 05/04/21

DOCKET NO. 18-34 323
DATE: May 4, 2021

REMANDED

The claim of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to August 22, 2018, is remanded.

REASONS FOR REMAND

The Veteran had honorable active duty service in the United States Marine Corps from January 1978 to December 1981.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2017 rating decision issued by the Department of Veterans Affairs Regional Office (RO).

In July 2019, the Board issued a decision in which it denied entitlement to a TDIU prior to August 22, 2018, to include on an extraschedular basis, and remanded the question of entitlement to a TDIU from August 22, 2018.  The Veteran appealed the Board's denial to the Court of Appeals for Veterans Claims (Court).  In May 2020, pursuant to a Joint Motion for Partial Remand (JMPR), the Court vacated and remanded the portion of the Board decision denying entitlement to a TDIU prior to August 22, 2018.  Pursuant to the Court's remand, the Board must adequately address the combined effects of the Veteran's posttraumatic stress disorder (PTSD), hearing loss, and tinnitus on his ability to secure or follow substantially gainful employment, and must provide adequate consideration of the Veteran's educational and occupational history.

1. The claim of entitlement to a TDIU prior to August 22, 2018 is remanded.

The Veteran contends he is entitled to a TDIU on an extraschedular basis prior to August 22, 2018.

In its July 2019 decision, the Board concluded that referral for extraschedular consideration was not warranted because the Veteran's service-connected disabilities did not prevent him from being able to secure or follow a substantially gainful occupation for the period from June 13, 2018, to August 21, 2018.

In accordance with the JMPR, the Board finds that referral to the Director, Compensation Services (Director), is required for extraschedular consideration of entitlement to TDIU prior to August 22, 2018.

The matter is REMANDED for the following action:

1. Submit the claim of entitlement to a TDIU under 38 C.F.R. § 4.16(b) to the Director for extraschedular consideration.  The Agency of Original Jurisdiction (AOJ) is advised to follow the procedures outlined in 38 C.F.R. § 4.16(b) governing referral of TDIU claims to the Director.  A copy of the referral, and any reply, to include the Director's decision, should be included in the record.

The AOJ should complete any additional development as required by the Director for retroactive extraschedular consideration of TDIU for the period on appeal prior to August 22, 2018.

Consideration must be given to the combined effects of Veteran's service-connected PTSD, tinnitus, and hearing loss in relation to his ability to obtain or maintain substantially gainful employment, as per the Court's May 2020 JMPR.

 

 

Hannah Fisher

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	C. Hart, 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.