Citation Nr: A21020552 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 211013-191229 DATE: December 27, 2021 REMANDED Entitlement to an effective date earlier than December 6, 2019 for the grant of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) on an extraschedular basis is remanded. Entitlement to an effective date earlier than December 6, 2019 for the grant of eligibility for Dependents' Educational Assistance (DEA) under 38 USC Chapter 35 is remanded. REASONS FOR REMAND The Veteran had honorable active-duty service from February 1966 to February 1968. These matters are before the Board of Veteran's Appeals (Board) from the September 2021 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which granted entitlement to TDIU, effective December 6, 2019, and granted an effective date of December 6, 2019 for DEA benefits. On the Decision Review Request Board Appeal Notice of Disagreement (NOD), VA Form 10182, which VA received in October 2021, the Veteran requested the direct review docket, allowing the Board to decide the claim based on the record as of the date of the agency of original jurisdiction (AOJ) decision on appeal 38 C.F.R. § 20.301. This decision has been written consistent with the new appeals modernization (AMA) framework. The Veteran contends that the effective date for TDIU and DEA benefits should be prior to December 6, 2019. Thus, the issues have been characterized as set forth on the title page. Additionally, the Board notes that entitlement to special monthly compensation (SMC) is not on appeal and is not addressed herein. Entitlement to an extraschedular TDIU prior to December 6, 2019 The Veteran contends that he is entitled to an award of a TDIU on an extraschedular basis prior to December 6, 2019. Specifically, the Veteran contends that he is entitled to an extraschedular TDIU as of February 27, 2019. The Veteran does not meet the schedular requirements for TDIU under 38 C.F.R. § 4.16(a) prior to December 6, 2019. However, even when the criteria under 38 C.F.R. § 4.16(a) are not met, entitlement to TDIU on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). The Board is precluded from assigning an extraschedular rating in the first instance. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court of Appeals for Veterans Claims held that the initial extraschedular referral decision should address whether there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or service connected disabilities." Given the low standard for referral set forth in Ray, the Board finds that the evidence reflects that the Veteran has met this standard. Thus, the claim is being remanded and referred to the Director of Compensation for extraschedular consideration under the provisions of 38 C.F.R. § 4.16(b). Entitlement to an earlier effective date for the grant of eligibility for DEA under 38 USC Chapter 35, prior to December 6, 2019 As the Veteran is asserting entitlement to an earlier effective date for extraschedular TDIU, the Board finds that this issue is inextricably intertwined with the resolution of the remanded issue. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to defer the claim on appeal pending the adjudication of the inextricably intertwined claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, this issue is remanded for readjudication following the indicated development on the TDIU issue. These matters are REMANDED for the following actions: Refer the case to the Director of Compensation for consideration of entitlement to TDIU prior to December 6, 2019 on an extraschedular basis under the provisions of 38 C.F.R. § 4.16(b). (Continued on the next page) The Director (or designee) should issue a memorandum addressing whether a TDIU is warranted under 38 C.F.R. § 4.16(b) prior to December 6, 2019. The memorandum should clearly provide a summary of the facts and law that were relied upon in making the decision and should include an explanation of the reasons and bases for the decision. Rebecca N. Poulson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C.A. Teich, 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.