Citation Nr: 21030883
Decision Date: 05/19/21	Archive Date: 05/19/21

DOCKET NO. 14-16 823
DATE: May 19, 2021

REMANDED

Entitlement to a total disability rating based on individual unemployability TDIU) due to service-connected disability on an extraschedular basis is remanded.

REASONS FOR REMAND

The Veteran served on active duty from January 1975 to January 1977. 

This matter is before the Board of Veterans Appeals (Board) on appeal from an October 2013 rating decision.

In June 2020, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), the Board found that the issue of entitlement to a TDIU due to service disability was in appellate status, as during the October 2013 VA hernias examination, the Veteran stated that he is unemployable due to service-connected hernia disability. Such statement was made during the pendency of his claim for an increased rating for his service-connected right inguinal hernia. The Board remanded the matter for additional development. 

The case has been returned to the Board for review. The Board finds that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). 

Entitlement to a TDIU due to service-connected disability on an extraschedular basis is remanded.

The Veteran seeks entitlement to a TDIU due to service-connected disability. In the VA form 21-8940 received in December 2020, he asserts, in relevant part, that his service-connected hernia disability and service-connected right hydrocele associated with post-operative right inguinal hernia prevent him from securing or following any substantially gainful occupation. 

The Veteran's service-connected disabilities do not meet the schedular requirements for TDIU under 38 C.F.R. § 4.16 (a) during the appeal period. 

The Veteran had a VA examination for hernias in February 2016, nearly 5 years ago. The Court has held that VA's duty to assist a veteran includes the duty to conduct a thorough and contemporaneous examination. See Green v. Derwinski, 1 Vet. App. 121-124 (1991). The Board finds that a new examination is required to determine the Veteran's current functional limitations due to his service connected right inguinal hernia and associated disabilities. 

The matter is REMANDED for the following action:

1. Associate updated VA treatment records. 

(Continued on the next page)

 

2. Obtain an opinion to determine the functional impairment caused by the Veteran's service connected disabilities. The examiner should identify all limitations or functional impairment caused solely by the Veteran's service-connected disabilities.

 

Jennifer White

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Susan Leary

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.