Citation Nr: 21007264 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 18-06 057 DATE: February 9, 2021 REMANDED Entitlement to a rating greater than 40 percent for a back disability on an extraschedular basis prior to April 21, 2003, is remanded. Entitlement to a total disability based upon individual unemployability (TDIU) on an extraschedular basis, prior to April 21, 2003, is remanded. Entitlement to Dependency and Indemnity Compensation (DIC) benefits under 38 U.S.C. § 1318, to include on the basis of CUE is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1953 to January 1959. He died in February 2012. The appellant is the Veteran’s surviving spouse. In a February 2019 decision, the Board denied the claims. The appellant subsequently appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In June 2020, the Court issued a memorandum decision setting aside the Board’s decision pertaining to entitlement to DIC benefits and remanded the Veteran’s appeal to the Board for readjudication. The claim is now back before the Board for readjudication. Of note, in the Court’s June 2020 memorandum decision, the Court stated that it was unclear whether missing service treatment records could have provided the Veteran with a higher initial rating for his back disability such that the Veteran may have met the criteria for schedular TDIU earlier than April 21, 2003. And if so, the appellant would have met the criteria for DIC benefits under 38 U.S.C. § 1318. Earlier rating decisions had assigned an evaluation for the back disability with consideration of the amount of disability attributable to a post-service 1993 back injury versus the amount attributable to service. However, the record shows that the April 2004 rating decision no longer contemplated the Veteran’s 1993 (post-service) back injury to reduce the evaluation for his back disability and assigned a 40 percent rating for his back disability, effective March 28, 1994, based solely on the current disabling manifestations of the back disability, with no reduction for the post-service injury. As a result, the missing service treatment records referred to by the Court would not have provided a basis for a higher rating. In that same rating decision, the AOJ specifically found that the Veteran’s neck disability was aggravated by the Veteran’s service-connected back disability. Pursuant to 38 U.S.C. § 1110 and 38 C.F.R. § 3.310, when aggravation of a Veteran’s non-service-connected condition is proximately due to or the result of a service-connected condition, such Veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. See Allen v. Brown, 7 Vet. App. 439, 448 (U.S. 1995). Therefore, since the Veteran was granted service connection for his neck disability due to aggravation from his service-connected back disability, the AOJ appropriately deducted the percentage of the Veteran’s disability related to the aggravation from baseline disability that existed before the aggravation. In this current case, VA examiners estimated that 30 percent of the Veteran’s neck disability was attributed to his service-connected back disability. In short, the addition of the Veteran’s STRs to the record, would not have changed his combined rating pertaining to meeting the schedular criteria for TDIU prior to April 21, 2003. 1. Entitlement to a rating greater than 40 percent for a back disability on an extraschedular basis prior to April 21, 2003, is remanded. The Veteran’s back disability was rated at 40 percent under 38 C.F.R. § 4.71a, Diagnostic Codes (DC) 5292-5295 (2002), due to degenerative changes involving the lumbar spine, evidence showing significant limitation of motion and complaints of chronic pain. The Veteran was also in receipt of a Social Security Administration (SSA) disability benefits based on his back and neck injuries. The SSA medical records associated with the record show that the Veteran was limited to lifting no more than 15 to 25 pounds. The Veteran was granted SSA disability due to his neck and back disability, albeit following subsequent injury in 1993. However, given the evidence of symptoms not specifically mentioned in the schedular criteria and the potential evidence of marked interference with employability, the Board finds that the criteria for referring the increased rating claim for extraschedular consideration have been met. 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111 (2008). 2. Entitlement to TDIU on an extraschedular basis, prior to April 21, 2003, is remanded. Prior to April 21, 2003, the Veteran’s combined disability rating was 50 percent. Thus, he did not meet the schedular criteria for TDIU as outlined in 38 C.F.R. § 4.16. The Veteran had a tenth-grade reading level with a high school GED and was essentially employed in manual labor throughout his lifetime. SSA records show that the part of the reason the Veteran was awarded SSA disability was based on his back and neck disabilities which are service-connected disabilities. Beginning April 21, 2003, the Veteran was granted TDIU once he met the schedular criteria. Since, the Board cannot decide extraschedular TDIU claims in the first instance, the Board must first refer the case to the Compensation Service Director for consideration of extraschedular TDIU. Bowling v. Principi, 15 Vet. App. 1 (2001). 3. Entitlement to DIC benefits under 38 U.S.C. § 1318, to include on the basis of CUE is remanded. The DIC benefits claim under 38 U.S.C. § 1318 is inextricably intertwined with the issues of a back disability and TDIU being referred for extraschedular consideration. Therefore, adjudication of the DIC benefits claim will be deferred until the extraschedular consideration of those issues are decided. The matters are REMANDED for the following action: 1. Refer the increased rating claim for a back disability to the Under Secretary for Benefits or the Director of Compensation and Pension Services for consideration of assignment of a rating greater than 40 percent for the Veteran’s back disability on an extraschedular basis prior to April 21, 2003, pursuant to 38 C.F.R. § 3.321(b). 2. Refer the claim of entitlement to TDIU to the Under Secretary for Benefits or the Director of Compensation and Pension Services for consideration of assignment of a TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16 (b). (Continued on the next page)   3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement DIC benefits under 38 U.S.C. § 1318. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. G. Perkins, 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.