Citation Nr: 21069763 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 18-25 683 DATE: November 19, 2021 REMANDED Entitlement to an extraschedular TDIU rating from December 5, 2016, to April 30, 2017, is remanded. REASONS FOR REMAND The Veteran had active duty from October 1970 to April 1972. These matters are before the Board of Veterans' Appeals (Board) on his appeal from a June 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) decision that awarded the Veteran a TDIU rating effective May 1, 2017, jointly awarding him service connection for his posttraumatic stress disorder (PTSD) that was rated at 50 percent and raised the Veteran's combined rating to 80 percent, allowing for an award of a TDIU rating on a schedular basis. 38 C.F.R. § 4.16(a). Prior to being awarded service connection for his PTSD, the Veteran was service connected for migraine headaches rated at 50 percent, bilateral hearing loss, rated at 10 percent, and tinnitus, also rated at 10 percent, meaning that the Veteran's combined rating for his service-connected disabilities was 60 percent, and that award was effective December 16, 2016. Moreover, the Veteran's award for service connection for his migraine headaches was effective December 5, 2016, and it was the first award of service connection for any of the Veteran's disabilities. Thus, until the Veteran became service connected for his PTSD, he was ineligible for a schedular TDIU rating since none of his disabilities was rated at 60 percent. While the Veteran's challenges related to a TDIU rating of his disabilities have had an extensive procedural history, those developments are largely immaterial here, and it shall suffice to state that the Veteran challenged the effective date of his TDIU rating upon merely pointing out that he was not employed since 2012 and stressing his service-connected migraine headaches and hearing disabilities. In April 2021, a Veterans Law Judge (VLJ) other than the undersigned issued a decision remanding these matters to the RO for further development, given that the Veteran was allegedly unemployed since 2012 and in receipt of "Social Security disability benefits for his headache and hearing disabilities." Specifically, the April 2021 VLJ directed the RO to obtain the Veteran's additional medical records generated by the Social Security Administration (SSA) and a clarification as to the Veteran's employment history. Upon the RO's receipt of the Veteran's SSA medical history and the Veteran's statement verifying, inter alia, that he had not worked anywhere since 2012, these matters were returned to the Board. Regardless of numerous references to the Veteran's unemployment prior to December 5, 2016, he cannot be awarded a TDIU rating prior to this date since none of his disabilities was service connected until December 5, 2016. Delrio v. Wilkie, 32 Vet. App. 232, 236 (2019). The foregoing leaves the Board with the Veteran's claim for a TDIU rating on an extraschedular basis under 38 C.F.R. § 4.16(b) during the five months period from December 5, 2016, to April 30, 2017. The key aspect of the Veteran's claim appears to be the fact that his migraine headaches were rated at 50 percent under 38 C.F.R. § 4.124a, Disability Code (DC) 8100. Indeed, DC 8100 provides that a 50 percent rating is the highest rating available for migraines, and such a rating is awarded if migraines manifest by "very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability." The Veteran's SSA records verify the magnitude of the disabling effect of his migraines. Pursuant to 38 C.F.R. § 4.16(b), when a veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities, but (s)he fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16(a), such case shall be submitted to the Director of Compensation Service (Director) for extraschedular consideration. Wages v. McDonald, 27 Vet. App. 233 (2015). Accordingly, while the Board regrets additional delay, the Board is required to refer the Veteran's claim for a TDIU rating to the Director before the Board obtains jurisdiction to adjudicate this claim on an extraschedular basis. The matters are REMANDED for the following action: 1. Refer the issue of the Veteran's entitlement to a TDIU rating on an extraschedular basis during the period from December 5, 2016, to April 30, 2017, to the Director pursuant to 38 C.F.R. § 4.16(b) and ensure that the contents of the Veteran's claims file, to include this Remand, are made available to the Director. 2. The Director or the Director's designee is requested to issue a memorandum addressing whether the Veteran is entitled to a TDIU rating on an extraschedular basis from December 5, 2016, to April 30, 2017. 3. Upon completing the foregoing and any other developments deemed necessary, readjudicate the Veteran's claim for a TDIU rating from December 5, 2016, to April 30, 2017. 4. If any benefit sought on appeal remains denied, a Supplemental Statement of the Case should be furnished to the Veteran and his representative, and he should be afforded a reasonable opportunity to respond. (Continued on the next page) The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Anna Kapellan, 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.