Citation Nr: 20043824
Decision Date: 06/30/20	Archive Date: 06/30/20

DOCKET NO. 16-11 898
DATE: June 30, 2020

REMANDED

Entitlement to a total disability rating based on individual unemployability (TDIU) prior to June 27, 2019 is remanded.

REASONS FOR REMAND

The Veteran had active duty from July 1963 to July 1969.

As pertinent here, in October 2018, the Board remanded claims for service connection for an acquired psychiatric disorder and entitlement to a TDIU for further development.  Subsequently, the RO granted service connection an acquired psychiatric disorder, and granted entitlement to a TDIU, effective June 27, 2019, the date the Veteran met the schedular criteria for entitlement to a TDIU.  Although the grant for service connection for an acquired psychiatric disorder is considered a full grant of the benefits sought on appeal, the issue of entitlement to a TDIU, was returned to the Board for further appellate consideration since the claim was pending prior to June 27, 2019. 

As noted, the Veteran does not meet the schedular criteria for a grant of TDIU prior to June 27, 2019.  Nonetheless, under Roberson v. Principi, 251 F.3d 1378 (2001) and Rice v. Shinseki, 22 Vet. App. 447 (2009), there is also a duty imposed on VA to consider TDIU even when the schedular criteria are not met.  VA policy is that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled.  38 C.F.R. § 4.16(b).  The Board does not have the authority to grant an extraschedular TDIU in the first instance; rather, the Board must refer the claim to the Director of Compensation and Pension (C&P) for an extra schedular determination.

Here, there is sufficient evidence to suggest that the Veteran may have been unable to maintain gainful occupation prior to June 27, 2019 due to his service-connected psychiatric disorder.  Therefore, the Board will remand this issue for extraschedular consideration.  

The matters are REMANDED for the following action:

1.  Refer the Veteran’s TDIU claim to the Director of Compensation Service or designee for consideration of whether an extraschedular rating is warranted for the appellate period prior to June 27, 2019. 

2.  Thereafter, readjudicate the remanded claim.

 

 

S. B. MAYS

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	A. Yaffe, 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.