Citation Nr: A21017161 Decision Date: 10/22/21 Archive Date: 10/22/21 DOCKET NO. 210927-187544 DATE: October 22, 2021 ORDER The Notice of Disagreement (NOD) received on June 14, 2018, specific to an extraschedular total rating based on individual unemployability (TDIU), is allowed. FINDINGS OF FACT 1. Service connection for ankylosing spondylitis with lumbosacral strain was granted in a June 15, 2017, rating decision, with a 20 percent initial rating effective August 21, 2008. 2. The June 15, 2017, rating decision increased the combined evaluation for compensation from 50 to 60 percent for the period from August 21, 2008, to March 22, 2010. 3. The issue of a total rating based on individual unemployability is not a separate claim for benefits but part of the initial rating for a service-connected disability. 4. A June 14, 2018, NOD indicated that the notification / decision letter date was June 15, 2017. 5. In the June 14, 2018, NOD, the Veteran specifically disagreed with the issue of "Entitlement to an extraschedular total rating under the provisions of 38 C.F.R. §4.16(a) or the alternative (b) for the period from 8/21/08 2/24/12." 6. The NOD received June 14, 2018, relative to the June 15, 2017, rating decision was timely. CONCLUSION OF LAW As the benefit sought was properly on appeal, there remains a legitimate case or controversy as to the issue of an extraschedular total rating based on individual unemployability. 38 U.S.C. §§ 1155, 7105 (2017); 38 C.F.R. §§ 3.105, 3.160, 3.2500, 4.16, 19.29, 19.55, 20.202 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Navy from August 1958 to August 1962 and in the U.S. Air Force from September 1962 to March 1965 and from May 1966 to November 1979, which included service in the Republic of Vietnam. This matter comes to the Board of Veterans' Appeals (Board) on appeal from February 2016, June 2017, and January 2021 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In his September 2021 Notice of Disagreement, the Veteran selected "Direct Review by a Veterans Law Judge" and indicated, "I do not want a Board hearing, and I will not submit any additional evidence in support of my appeal." See September 2021 VA Form 10182, Notice of Disagreement. The matter is before the Board for consideration. This case has been advanced on the docket pursuant to 38 U.S.C. § 7107(b) and 38 C.F.R. § 20.902(c). Timeliness of the Notice of Disagreement received on June 14, 2018, specific to an extraschedular total rating based on individual unemployability. Filing of Appeal Under 38 U.S.C. § 7105(a), appellate review will be initiated "by the filing of a notice of disagreement in the form prescribed by the Secretary." See 38 U.S.C. § 7105. Pursuant to 38 U.S.C. § 7105(b), "a notice of disagreement shall be filed within one year from the date of the mailing of notice of the decision of the agency of original jurisdiction." Further, the Veteran is required to "identify the specific determination with which the claimant disagrees." See 38 U.S.C. § 7105(b). In keeping with the provisions of 38 U.S.C. § 7105(c), "If no notice of disagreement is filed in accordance with this chapter within the prescribed period, the action or decision of the agency of original jurisdiction shall become final and the claim shall not thereafter be readjudicated or allowed." See 38 U.S.C. § 7105(c). Finally, the Board may dismiss any appeal which fails to identify the specific determination with which the claimant disagrees." See 38 U.S.C. § 7105(d). Analysis A June 15, 2017, VA Rating Decision granted service connection for "ankylosing spondylitis with lumbosacral strain." No other issues were addressed in the June 15, 2017, Rating Decision. See June 2017 VA Rating Decision Narrative. The Veteran submitted an NOD to the June 15, 2017, VA Rating Decision on June 14, 2018. Under "Notification / Decision Letter Date," the Veteran inserted "6-15-17." For "Specific Issue of Disagreement," the Veteran indicated: "Entitlement to an extraschedular total rating under the provisions of 38 C.F.R. § 4.16a or the alternative (b) for the period from 8/21/08 to 2/24/12." Regarding "Area of Disagreement," the Veteran selected "Other" and included "Extraschedular total rating." See June 2018 VA Form 21-0958, Notice of Disagreement. The Board is required to "review all issues which are reasonably raised from a liberal reading of the appellant's substantive appeal." See Myers v. Derwinski, 1 Vet. App. 127, 130 (1991). The issue raised by the Veteran in his June 2018 NOD, "Entitlement to an extraschedular total rating," is not a separate claim for benefits. The issue of entitlement to a TDIU is an attempt to obtain the appropriate rating for a Veteran, either as part of the initial claim adjudication for service connection, or as part of an increased rating adjudication. In other words, there is no freestanding TDIU claim. See Rice v. Shinseki, 22 Veteran. App 447 (2009). The June 14, 2018, NOD to the June 15, 2017, rating decision was filed "within the prescribed period," pursuant to 38 U.S.C. § 7105; therefore, the decision of the agency of original jurisdiction did not become "final," allowing for readjudication of the claim. See 38 U.S.C. § 7105(c). While applicable law and regulation allow the Board to "dismiss any appeal which fails to allege specific error of fact or law in the determination, or determinations, being appealed," that is not the case here. See 38 U.S.C. § 7105(d); 38 C.F.R. § 20.202. Following the final adjudication on June 15, 2017, specific to the issue of service connection for ankylosing spondylitis with lumbosacral strain, which included a claim for entitlement to a TDIU, the Veteran continuously pursued a claim for the issue, allowed by 38 U.S.C. § 7105(c). Readjudication is an available remedy to the Veteran, and the Board has jurisdiction to reach the merits of his claim. Conclusion The Board's obligation to read filings in a liberal manner does not require the Board or the Veterans Court to search the record and address procedural arguments when the Veteran fails to raise them before the Board. See Scott v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2015). However, the issue of a TDIU is not a separate claim for benefits, and the issue was reasonably raised in the June 15, 2017, rating decision. A notice of disagreement is a jurisdiction-conferring document. See Manlincon v. West, 12 Vet. App. 238, 240 (1999). The presence of a legitimate question of fact or law in the June 14, 2018, NOD, entitlement to a TDIU, provided the Board with jurisdiction over the issue of timeliness of the June 14, 2018, NOD. As the Board has jurisdiction to reconsider the merits of the issue of timeliness of a Notice of Disagreement, the Board finds that the issue is with legal merit, and the appeal is hereby allowed. REMANDED Entitlement to an extraschedular TDIU is remanded. REASONS FOR REMAND Entitlement to an extraschedular TDIU. VA has a duty to "render a decision which grants every benefit that can be supported in law." See 38 C.F.R. § 3.103(a). Pursuant to Rice v. Shinseki, 22 Vet. App 447 (2009), a claim for a TDIU, whether raised by the Veteran or reasonably raised from the record, is not a separate claim for benefits. As discussed previously, the June 15, 2017, rating decision, granting service connection for ankylosing spondylitis with lumbosacral strain, reasonably raised the issue of entitlement to a TDIU. In a claim for initial service connection or for increased rating of an existing service-connected condition, "the claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and it follows that such claim remains in controversy where less than the maximum available benefit is awarded." See AB v. Brown, 6 Vet. App. 35 (1993). Therefore, the matter must be remanded to adjudicate the issue of entitlement to a TDIU, to include on an extraschedular basis, from August 21, 2008, to February 24, 2012. The matter is REMANDED for the following action: 1. Adjudicate the issue of entitlement to a TDIU from August 21, 2008, to February 24, 2012, to include on an extraschedular basis. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Small, Attorney Advisor 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.