Citation Nr: 21008856
Decision Date: 02/18/21	Archive Date: 02/18/21

DOCKET NO. 14-26 823
DATE: February 18, 2021

REMANDED

Entitlement to a total disability rating based on individual unemployability (TDIU) prior to August 27, 2010 is remanded.

REASONS FOR REMAND

The Veteran served on active duty form October 1974 to December 1977.

This matter comes before the Board of Veterans’ Appeals on appeal from a May 2012 rating decision that granted a TDIU effective August 27, 2010. The claim for TDIU was raised within the context of a January 2008 claim for an increased rating for fibromyalgia. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran was scheduled for a hearing but withdrew the request in an April 2019 letter.

Entitlement to a TDIU prior to August 27, 2010.

The Veteran filed a claim for a TDIU in April 2009. The schedular criteria under 38 C.F.R. § 4.16(a) were not met until August 27, 2010, the effective date assigned for the grant of service connection and an initial 50 percent rating for major depressive disorder. Prior to August 27, 2010, the Veteran was assigned a 40 percent disability rating for fibromyalgia. Her combined disability rating was 40 percent. As such, she did not meet the requirements for a schedular TDIU prior to August 27, 2010.

Under 38 C.F.R. § 4.16(b), when schedular TDIU criteria are not met, entitlement may still be granted on an extraschedular basis if the Veteran is unable to secure and follow a substantially gainful occupation due to service-connected disabilities. 

Extraschedular entitlement is reasonably raised by the record in this case. The Veteran last worked in approximately 2001 and the evidence of record prior to August 27, 2010 indicated the Veteran’s service-connected fibromyalgia prevented the Veteran from working. While a May 2001 Social Security Administration (SSA) determination does not list fibromyalgia as a primary or secondary diagnosis, VA medical records prior to August 27, 2010 indicate the Veteran’s fibromyalgia pain was constant and affecting her ability to move and perform activities of daily living. A September 2008 VA examination for fibromyalgia found the Veteran’s fibromyalgia had severe effects on usual daily activities such as chores, shopping, and traveling and moderate effects on bathing, dressing, toileting, and grooming. 

The Board lacks the authority to adjudicate extraschedular entitlement in the first instance. See Wages v. McDonald, 27 Vet. App. 233 (2015). Accordingly, the issue is referred to the Director of Compensation Service for consideration.

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The matter is REMANDED for the following action:

1. Refer the Veteran’s claim for entitlement to a TDIU prior to August 27, 2010 on an extraschedular basis to VA’s Director of Compensation Service for extraschedular consideration. Attention is invited to the evidence discussed in this remand.

 

 

Marissa Caylor

Acting Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	Lee Feldman, Attorney Advisor

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.