Citation Nr: 20002252 Decision Date: 01/10/20 Archive Date: 01/09/20 DOCKET NO. 17-20 495 DATE: January 10, 2020 ORDER An effective date prior to July 30, 2012, for the award of a schedular total disability rating based on individual unemployability (TDIU) is denied. REMANDED Entitlement to extraschedular consideration for a TDIU in accordance with 38 C.F.R. § 4.16 (b) for the period from February 11, 2012 to July 29, 2012 is remanded. FINDING OF FACT The Veteran filed his TDIU claim in February 2013; the substantive requirements for entitlement to a TDIU did not arise prior to July 30, 2012. CONCLUSION OF LAW The criteria for entitlement to an effective date earlier than July 30, 2012 for a schedular TDIU are not met. 38 U.S.C. §§ 5110; 38 C.F.R. §§ 3.400, 4.16 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1981 to February 1987. The Veteran contends that his TDIU award should be made effective April 10, 2010, the date he last worked. See VA Form 9. Generally, when the schedular rating is less than total, a total disability rating may be assigned when the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). A claim for a TDIU is a claim for increased compensation, and the effective date rules for increased compensation apply to a TDIU claim. For a claim for increased rating, if the increase is factually ascertainable within one year prior to the receipt of the claim, the rating will be effective as of the date of increase; however, if the increase occurred more than one year prior to receipt of the claim, the increase will be effective on the date of claim. Further, if the increase occurred after the date of claim, the effective date will be the date of increase. 38 U.S.C. § 5110 (b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400 (o)(1), (2); VAOPGCPREC 12- 98 (1998). A review of the record shows that the Veteran has a combined disability rating of 90 percent effective July 30, 2012. Prior to that date (from May 14, 1991 to November 22, 2011), his disabilities were rated as 20 percent disabling. From November 23, 2011 to July 29, 2012, he was in receipt of a combined 30 percent rating. After carefully reviewing the evidence of record, the Board finds that entitlement to a schedular TDIU rating arose on July 30, 2012. The Board therefore finds that regardless of the date that a formal or informal claim for TDIU was filed, the Veteran was not entitled to a TDIU rating on a schedular basis prior to July 30, 2012. As a result, his claim for an earlier effective date for an award of TDIU on a schedular basis must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit). REMANDED The Board notes that an award of TDIU may be granted on an extraschedular basis under 38 C.F.R. § 4.16 (b) even if a Veteran fails to meet the percentage requirements specified under 38 C.F.R. § 4.16 (a), if it is established, he is unemployable on account of service-connected disability or disabilities. As noted in the previous section, the effective date for an increased rating for disability compensation (to include a TDIU) will be the earliest date as of which it is factually ascertainable that an increase in disability occurred if a claim is received within 1 year from such date; otherwise, the effective date is the date of receipt of the claim. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2). As such, the period for extraschedular TDIU consideration is from February 11, 2012 (one year prior to the Veteran’s claim for a TDIU) to July 30, 2012 (the date he was awarded a schedular TDIU). The Veteran has indicated that his back disability (in effect prior to July 30, 2012) impacted his ability to work. As such, referral for extraschedular consideration in accordance with 38 C.F.R. § 4.16 (b) is required for the period from February 11, 2012 to July 29, 2012. The Board may not grant a TDIU on an extraschedular basis in the first instance. Rather, the matter must be referred to the Director of the Compensation Service (Director) for extraschedular consideration. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). The matters are REMANDED for the following actions: 1. Refer the Veteran’s claim to the Director, Compensation and Pension Service, for consideration of an extraschedular TDIU award for the period from February 11, 2012 to July 29, 2012. 2. Then, readjudicate the claim on appeal. L. Chu Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.