Citation Nr: 21065657
Decision Date: 10/27/21	Archive Date: 10/27/21

DOCKET NO. 16-35 206
DATE: October 27, 2021

REMANDED

The claim of entitlement to a total disability rating due to individual unemployability (TDIU) prior to August 15, 2020, is remanded.

REASONS FOR REMAND

The Veteran served on active duty from May 2000 to May 2004.

This appeal originated from an October 2014 rating decision.  

In April 2021, the Board remanded TDIU for additional development.  Since then, it has been granted effective from August 15, 2020.  Accordingly, the period prior to August 15, 2020, remains on appeal.   

The claim of entitlement to a TDIU prior to August 15, 2020, is remanded.

When any impairment of mind or body sufficiently renders it impossible for the average person to follow a substantially gainful occupation, that impairment will be found to be causing total disability.  38 C.F.R. § 3.340.  

Where a veteran's schedular rating is less than total, a total disability rating may be assigned 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 disabilities, provided certain requirements are met.  Under 38 C.F.R. § 4.16(a), if the veteran has only one such disability, then this disability shall be ratable at 60 percent or more; if the veteran has two or more such disabilities, then there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. § 4.16(a).  Here, prior to August 15, 2020, the Veteran does not meet the schedular requirements for a TDIU.  His Crohn's disease was rated 30 percent, and his depressive disorder due to Crohn's disease was also rated 30 percent, for a combined 50 percent rating.  Although they can be considered as one disability because they both result from Crohn's disease, a single disability rated at 50 percent does not meet the schedular criteria.     

When a veteran fails to meet the schedular requirements for eligibility for a total rating as set forth in 38 C.F.R. § 4.16(a) the case may be submitted to the Director of the Compensation Service for extraschedular consideration.  38 C.F.R. § 4.16(b).  The Board is precluded from granting a total rating under section 4.16(b) in the first instance.

A March 2017 private medical opinion indicates that Chron's disease and depressive disorder potentially prevent employment.

Accordingly, the record contains evidence that his disabilities caused unemployability potentially prior to August 5, 2020, he was only working for a portion of the relevant time period; therefore, this claim must be referred to the Director of the Compensation Service for a decision on whether an extraschedular TDIU is warranted.

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The matters are REMANDED for the following action:

Refer the Veteran's file to the Director of the Compensation Service for a determination on whether an extraschedular TDIU is warranted.

 

 

Jennifer White

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Gibson

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.