Citation Nr: 18145673 Decision Date: 10/30/18 Archive Date: 10/29/18 DOCKET NO. 94-31 828A DATE: October 30, 2018 REMANDED Entitlement to an effective date earlier than April 8, 2003 for the award of a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1955 to March 1955. This matter is on appeal from a September 2004 rating decision. In January 2011, the Board remanded the issue for additional development. In June 2012, the RO granted an effective date of April 8, 2003, for the award of a TDIU. In a November 2012 decision, the Board denied an effective date prior to April 8, 2003, for the award of a TDIU, and the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In October 2014, the Court, in a Memorandum Decision, vacated that portion of the November 2012 Board decision which denied an effective date prior to April 8, 2008, for the award of a TDIU and remanded the issue to the Board for additional action. In July 2015, July 2016, and August 2017, the matter was remanded for additional action. Effective date earlier than April 8, 2003 for the grant of TDIU The Board sincerely regrets the additional delay, but finds it necessary for the proper adjudication of the claim. The grant of TDIU is an award of increased disability compensation for purposes of assigning an effective date. Dalton v. Nicholson, 21 Vet. App. 23 (2007); Wood v. Derwinski, 1 Vet. App. 367, 369 (1991). Under 38 U.S.C. § 5110(a), the effective date of an increase in a veteran’s disability compensation “shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.” Section 5110(b)(2) provides an exception to this general rule: “The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date.” A TDIU may be assigned where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disability; provided that if there is only one such disability, the disability shall be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341(a), 4.16(a). However, where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran’s background including his or her employment and educational history. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Instead, where a veteran does not meet the schedular requirements, the Board may only refer the claim to the Director of Compensation Service, for extraschedular consideration. Id. In this case, the Veteran does not meet the schedular requirements for TDIU for the period prior to April 8, 2003. The November 2012 Board decision found that it was not factually ascertainable that the Veteran’s service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation prior to April 8, 2003, and declined to refer the matter to the Director of Compensation Service. However, the Court, in the October 2014 Memorandum Decision, noted that the Board did not discuss a February 2003 statement from the Veteran’s professor, which indicated that even granting the Veteran special accommodations due to his condition, the Veteran’s work and test results were still “deficient.” The Court also indicated that the Board did not discuss any lay evidence of record, including the Veteran’s statements and the statements of his family. The Veteran’s friend submitted a statement in February 1989, indicating that the Veteran’s conduct was violent without provocation, and that he neglected his personal hygiene and appearance. The Veteran, in a May 1999 statement, indicated that his service-connected schizophrenia disabled him physically and mentally, and that he suffered from symptoms including insomnia, mental tiredness, inability to concentrate, and the feeling that he was going to lose his mind. The Veteran’s wife also submitted a May 2004 statement that he became irritable, misinterpreted things, and verbally attacked people who were having a conversation with him. She indicated that was the cause of their separation for 14 years. Based on this evidence, and combined with a March 1986 statement of disability and a March 2010 letter from Dr. L.T., who stated that he considered the Veteran to be totally and permanently disabled for gainful employment when he first examined him in March 1982 and through the years that he treated him; the Board finds that the record contains evidence suggesting that the Veteran may be entitled to an award of TDIU on an extraschedular basis prior to April 8, 2003. 38 C.F.R. § 4.16(b). As the Board finds there is some plausible evidence of unemployability prior to April 8, 2003, a remand is required for the Director of Compensation Service to determine if an extraschedular rating is warranted for a TDIU under 38 C.F.R. § 4.16(b). The matter is REMANDED for the following action: Refer the Veteran’s claim to the Director of Compensation Service for consideration of an assignment of an effective date earlier than April 8, 2003 for the award of TDIU on an extraschedular basis in accordance with the provisions of 38 C.F.R. § 4.16(b). M. SORISIO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Bonnie Yoon, Counsel