Citation Nr: 21012940
Decision Date: 03/08/21	Archive Date: 03/08/21

DOCKET NO. 09-48 384
DATE: March 8, 2021

REMANDED

The issue of a total disability rating based on individual unemployability (TDIU) for the period prior to March 27, 2007, is remanded.

REASONS FOR REMAND

The Veteran served in the United States Marine Corps from August 1967 to June 1969.  His military decorations include the Purple Heart.

The Veteran died in January 2011.  The appellant is his surviving spouse who has been substituted in this appeal.

The Board of Veterans’ Appeals (Board) previously considered the issue of entitlement to a TDIU in a May 2019 decision.  As explained in the Board’s recent decision on its own motion to revise the May 2019 decision on the basis of clear and unmistakable error (CUE), it did not have authority to grant entitlement to a TDIU in the first instance for the period prior to March 27, 2007.

The Veteran did not meet the schedular criteria for a TDIU prior to March 27, 2007.  See 38 C.F.R. § 4.16(a).  There is evidence of record, however, that the Veteran’s service-connected disabilities contributed to substantial employment limitations prior to that date.  As such, referral to the Director, Compensation Service is warranted to determine whether entitlement to a TDIU is warranted pursuant to 38 C.F.R. § 4.16(b).

The matters are REMANDED for the following action:

1. Refer the issue of entitlement to a TDIU earlier than March 27, 2007, on an extra-schedular basis to the Director, Compensation Service for adjudication in accordance with 38 C.F.R. § 4.16(b).

2. Readjudicate the issue on appeal. If the benefit sought on appeal remains denied, the appellant should be provided a supplemental statement of the case (SSOC). An appropriate period should be allowed for response before the case is returned to the Board.

 

 

Jacqueline E. Miller

Acting Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	B. Whitelaw, 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 This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.