Citation Nr: 21072369
Decision Date: 12/02/21	Archive Date: 12/02/21

DOCKET NO. 17-28 807
DATE: December 2, 2021

REMANDED

Entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis prior to October 28, 2019 is remanded.

REASONS FOR REMAND

The Veteran served on active duty from January 1968 to January 1971.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).  The Board previously remanded the issue in February 2020 and March 2021 for referral to the Director of Compensation Service (DOC) for consideration of an extraschedular rating.  Additionally, an 

In April 2021, the RO sent a memorandum to the DOC for review.  However, in the Advisory Opinion, the issue of TDIU on an extraschedular basis was deferred.  The DOC noted that the RO had not yet considered a January 2020 posttraumatic stress disorder (PTSD) VA examination that indicated a higher evaluation may be possible for his service-connected mental health disorder.  The RO was advised to consider the Veteran's increased rating claim for his PTSD and if an extraschedular evaluation was still required, then a new request should be submitted.

 

In an April 2021 rating decision, the Veteran's rating for PTSD was increased from 30 percent to 70 percent effective October 28, 2019.  Effective that date, he also met the schedular criteria for a TDIU.  In June 2021, he was awarded a TDIU effective October 28, 2019.  Here, the record shows the Veteran first filed his claim for TDIU in March 2013.  As such, the June 2021 grant does not bifurcate the TDIU issue, and a Notice of Disagreement does not need to be filed to challenge the effective date assigned for the award of a TDIU.  Harper v. Wilkie, 30 Vet. App. 356 (2018) (holding that a grant of TDIU for a portion of the appeal period does not bifurcate the appeal and, therefore, is considered a partial grant of the benefit sought).  Thus, the issue of entitlement to TDIU on an extraschedular basis prior to October 28, 2019 is still on appeal.  However, the RO did not re-submit a request to the DOC for the period prior to October 28, 2019 for consideration of an extraschedular TDIU as instructed when the issue was deferred by the DOC.

As noted in the previous remands, the Board is precluded from assigning a TDIU rating on an extraschedular basis in the first instance.  Bowling v. Principi, 15 Vet. App. 1, 10 (2001) and, thus, the TDIU matter, on an extraschedular basis, 

is remanded to the RO for referral to the Director of Compensation Service for consideration of an extraschedular TDIU rating for the period prior to October 28, 2019.

(CONTINUED ON THE NEXT PAGE)

 

This matter is REMANDED for the following action:

Refer the Veteran's request for a TDIU per § 4.16(b) to the Director, Compensation Service, for extraschedular consideration as to whether his service-connected disabilities preclude him from participating in gainful employment prior to October 28, 2019. 

 

Paul Sorisio

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Cruz, K.

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.