Citation Nr: 21032692
Decision Date: 05/27/21	Archive Date: 05/27/21

DOCKET NO. 16-37 686
DATE: May 27, 2021

REMANDED

Entitlement to an extraschedular total disability rating based on individual unemployability (TDIU) is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the United States Army from December 1967 to December 1969. 

The Veteran passed away in December 2018. The Appellant is the Veteran's surviving spouse. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision by the Agency of Original Jurisdiction (AOJ). The appeal was most recently remanded in May 2019 for referral to the Director of Compensation Service and to obtain a VA Form 21-8940. 

A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand orders. Where the remand orders of the Board were not complied with, the Board itself errs in failing to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998).

In accordance with the May 2020 Board remand, the AOJ requested a VA Form 21-8940 in June 2020. The appellant returned the form in November 2020. However, due to the delay, the AOJ did not refer the TDIU claim to the Director of Compensation Service for extraschedular consideration. Thus, further remand is necessary to ensure compliance with the May 2020 remand directives. Id.

The matters are REMANDED for the following action:

Refer the issue of entitlement to TDIU to the Director, Compensation Service for extraschedular consideration. 

 

 

GAYLE STROMMEN

Veterans Law Judge

Board of Veterans' Appeals

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 This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.