Citation Nr: 21062484 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 20-28 289 DATE: October 7, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) on an extraschedular basis prior to July 2, 2012 is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1963 to September 1967 and from December 1990 to May 1991. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in July 2017 by a Department of Veterans Affairs (VA) Regional Office (RO). By way of background, in a May 2014 decision the Board denied entitlement to increased ratings for PTSD and for tremors of the head and neck. At that time the Board also remanded the issue of entitlement to a TDIU for further development, noting that the issue of entitlement to a TDIU had been raised during his October 2012 hearing testimony as part of the increased ratings claims on appeal. Rice v. Shinseki, 22 Vet. App. 447 (2009). As such, appellate period for the TDIU claim ran concurrently with the appellate periods for the increased ratings claims before the Board at that time. See Harper v. Wilkie, 30 Vet. App. 356, 35962 (2018). The claim was eventually returned to the Board, and in a February 2017 decision the Board granted entitlement to a TDIU, but did not set an effective date for the award. In a June 2017 rating decision, the RO effectuated the grant of a TDIU and assigned an effective date of July 2, 2012, the date the Veteran met the schedular criteria. The Veteran then properly perfected an appeal as to the assigned effective date, arguing that an effective date of 2010 was warranted and that such should have been granted on an extraschedular basis. 38 C.F.R. § 20.302 (2018). In reviewing the prior February 2017 decision, as noted above the Board did not specifically set an effective date for its award of a TDIU in the order granting the benefit, nor were specific dates included in the findings of fact or conclusions of law. In the decision itself, the Board noted only that the Veteran met the schedular criteria for entitlement to a TDIU as of July 2, 2012. The Board then only discussed the evidence of record from that date forward in granting entitlement. None of the evidence of record prior to July 2, 2012 was discussed, nor did the Board deny, or in any way discuss, the question of referral for extraschedular consideration. 38 C.F.R. § 4.16(b). While the current issue on appeal has to date been adjudicated as entitlement to an earlier effective date for the award of a TDIU, as discussed above the February 2017 Board decision did not set a specific effective date for its award of a TDIU and further did not in any way address the question of referral for extraschedular consideration. Indeed, the Board did not discuss any of the evidence of record prior to July 2, 2012, despite the fact that the TDIU claim was part and parcel of increased ratings claims which had been pending prior to July 2, 2012. See Harper, 30 Vet. App. at 35962. As such, the Board finds that it cannot be said that the February 2017 Board decision either explicitly or implicitly denied entitlement to a TDIU prior to July 2, 2012. See Andrews v. Nicholson, 421 F.3d 1278, 1281 (Fed. Cir. 2005); Adams v. Shinseki, 568 F.3d 956, 96365 (Fed. Cir. 2009). Therefore, the issue currently on appeal is more accurately characterized as entitlement to a TDIU prior to July 2, 2012, to include on an extraschedular basis, as opposed to a claim for an earlier effective date. 1. Entitlement to a TDIU on an extraschedular basis prior to July 2, 2012. Prior to July 2, 2012, the Veteran does not meet the threshold criteria for eligibility for a TDIU. 38 C.F.R. § 4.16(a). While a TDIU may also be awarded on an extraschedular basis, the Board may not do so in the first instance. 38 C.F.R. § 4.16(b); see Floyd v. Brown, 9 Vet. App. 88, 9495 (1996). As such, a remand is necessary so that the claim may be referred to the Director, Compensation Service, for extraschedular consideration. The matters are REMANDED for the following action: 1. Forward the Veteran's claim to the Director, Compensation Service, for consideration of the assignment of an extraschedular rating for a total disability rating based upon individual unemployability due to service-connected disabilities under 38 C.F.R. § 4.16(b) prior to July 2, 2012. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Wendell, 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.