Citation Nr: 21077565
Decision Date: 12/30/21	Archive Date: 12/30/21

DOCKET NO. 13-08 646
DATE: December 30, 2021

REMANDED

Entitlement to an effective date earlier than March 18, 2016, for the award of a total disability rating based on individual unemployability (TDIU) is remanded.

REASONS FOR REMAND

The Veteran served on active duty from October 1966 to October 1970.  During the course of this appeal, the Veteran died on January 31, 2020, and in July 2020 his spouse was substituted as the Appellant.

This case was most recently before the Board in June 2021, at which time the appeal was remanded to the Agency of Original Jurisdiction (AOJ) for further development. The case has now been returned to the Board for appellate action.

Entitlement to a TDIU prior to March 18, 2016 is remanded

Unfortunately, another remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure the Veteran is given every possible consideration.

In June 2021, the Board granted entitlement to service connection for diabetic neuropathy.  The Board remanded the claim for entitlement to a TDIU prior to March 18, 2016 as the claim was inextricably intertwined with the initial rating and effective date to be assigned for the Veteran's service-connected diabetic nephropathy.  See Harris v. Derwinski,1 Vet. App. 180(1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered).  In August 2021, the AOJ found that the service connection for diabetic neuropathy was granted with a noncompensable (0 percent) disability rating from January 4, 2011.  

Prior to March 18, 2016, the Veteran's service-connected disabilities were: (1) diabetes mellitus (DM), rated 20 percent disabling from July 19, 2001 and 40 percent disabling from January 4, 2011; (2) peripheral neuropathy of the left lower extremity associated with DM, rated 10 percent disabling from January 16, 2014; (3) peripheral neuropathy of the right lower extremity associated with DM, rated 10 percent disabling from January 16, 2014; and, (4) dermatitis of both elbows and right middle finger, rated 10 percent disabling from October 14, 1970.  The disabilities prior to March 18, 2016 did not meet the schedular criteria for a TDIU under 38 C.F.R. § 4.16 (a). Consequently, the only possible avenue of recovery would be under the extraschedular provisions of § 4.16(b). 

A TDIU may be granted on an extraschedular basis under § 4.16(b) even though he fails to meet the percentage requirements if it is established, he was unemployable on account of a service-connected disability or service-connected disabilities.

As there is evidence suggesting that the Veteran was unable to work due to his service-connected disabilities prior to March 18, 2016, the TDIU issue is remanded for referral to the Director, Compensation Service for extraschedular consideration.

(Continued on the next page)

 

This matter is REMANDED for the following action:

Refer the claim to the Director, Compensation Service, for consideration of whether a TDIU prior to March 18, 2016 on an extraschedular basis is warranted.

 

 

T. Berry

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. Costello, 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.