Citation Nr: 22008057 Decision Date: 02/11/22 Archive Date: 02/11/22 DOCKET NO. 12-31 428 DATE: February 11, 2022 REMANDED Entitlement to a total disability rating based on unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served in the United States Army on active duty from November 2000 to November 2002. The issue comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the Board in October 2013. A transcript of the hearing has been included with the record. In January 2015, the Board remanded the Veteran's claims for further development. In February 2016, the Board included the Veteran's claim to TDIU and remanded for development. In April 2020, the Board denied the Veteran's claim to a TDIU and an initial compensable rating for the Veteran's second metacarpal fracture of the right hand (metacarpal disability). The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (CAVC). In a March 2021 Joint Motion for Partial Remand (JMPR), the Court vacated the Board's denial of the Veteran's metacarpal disability increased rating claim. Additionally, the Court vacated the Board's denial of a TDIU and remanded, finding the Veteran's claim for a TDIU was inextricably intertwined with the Veteran's metacarpal disability increased rating claim. In July 2021, the Board granted an increased initial rating for the Veteran's metacarpal disability, and remanded the Veteran's TDIU claim for further development. While the Board regrets further delay, another remand is necessary to ensure substantial compliance with the July 2021 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to a total disability rating based on unemployability (TDIU) is remanded. The Veteran contends that his service-connected disabilities barred him from maintaining substantial gainful employment. In July 2021, the Board remanded the Veteran's claim for a TDIU to request and obtain the Veteran's relevant employment history. Additionally, as the Veteran does not meet the preliminary schedular criteria for a TDIU under 38 C.F.R. § 4.16(a) at any time throughout the duration of the appeal, the Board's remand directives instructed the RO to refer the Veteran's claim to VA's Director of Compensation Service for extraschedular consideration for a TDIU. The record is absent of the referral and subsequent guidance from the VA's Director of Compensation Service regarding extraschedular consideration of the Veteran's claim. A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand orders. Stegall, 11 Vet. App. at 271. Where the remand orders of the Board are not complied with, the Board itself errs in failing to ensure compliance. Moreover, because the Board is precluded from considering entitlement to an extraschedular TDIU under 38 C.F.R. § 4.16(b) in the first instance, remand is necessary for referral to VA's Director of Compensation Service. As such, the Board finds that the Veteran's claim is not ready for appellate review and must be remanded for compliance with the July 2021 remand instructions. The matters are REMANDED for the following action: 1. Refer the Veteran's claim for a TDIU to VA's Director of Compensation Service for extraschedular consideration for a TDIU. 2. Then, readjudicate the remanded claim. If the benefit sought remains denied, send the Veteran and the representative a Supplemental Statement of the Case, and after a period, return the claim to the Board. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.V. Bona, 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.