Citation Nr: 21023854 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 06-20 716 DATE: April 21, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis prior to March 22, 2010 is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1988 to May 1989 and from March 1991 to July 1996. This appeal to the Board of Veterans’ Appeals (Board) is from an August 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, the Board granted a TDIU as of March 22, 2010, but denied this benefit prior to that date. The Veteran appealed to the higher U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC) – to the extent the Board had denied a TDIU prior to March 22, 2010. In December 2020, the contesting parties filed a Joint Motion for Partial Remand (JMPR), which the Court granted in an Order that same month, partially vacating the Board’s decision – to the extent it had denied a TDIU prior to March 22, 2010, and remanding this remaining portion of the claim back to the Board for further development and re-adjudication in compliance with directives specified. To this end, the Board, in turn, is remaining this claim back to the RO. Entitlement to a TDIU on an extraschedular basis prior to March 22, 2010 is remanded. For this remaining period at issue prior to March 22, 2010, the Veteran’s service-connected disabilities did not meet the schedular rating requirements for a TDIU according to 38 C.F.R. § 4.16(a). However, evidence, including especially the May 2018 private vocational assessment, suggest his service-connected disabilities rendered him unemployable even before March 22, 2010, so this claim must be referred to the Director of the Compensation Service for extraschedular TDIU consideration during this earlier period under the special provisions of § 4.16(b). Although the Board cannot grant a TDIU on an extraschedular basis in the first instance, the Board must determine whether this referral for extraschedular consideration is warranted to have the Director of the Compensation Service, instead, make this initial determination. See Barringer v. Peake, 22 Vet. App. 242 (2008). See also Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996). But, by the same token, consider also that the Director's eventual decision is not evidence, but, rather, the de facto decision of the Agency of Original Jurisdiction (AOJ), and if unfavorable the Board must conduct de novo review of this decision. See Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015) (holding that the Board conducts de novo review of the Director's decision denying extraschedular consideration). The Court since has reaffirmed that the Board has jurisdiction to review the entirety of the Director's decision denying or granting an extraschedular rating and elaborated that the Board is authorized to assign an extra-schedular rating when appropriate. Kuppamala v. McDonald, 27 Vet. App. 447 (2015). Although the Board is required to obtain the Compensation Service Director's decision before awarding extraschedular TDIU benefits, the Board is not bound by the Director's decision or otherwise limited in its scope of review of that determination. Wages, 27 Vet. App. at 236-38 (citing 38 U.S.C. §§ 511(a), 7104(a); 38 C.F.R. § 4.16(b)). Accordingly, this matter is REMANDED for the following action: Refer the Veteran’s claim for an extraschedular TDIU prior to March 22, 2010 to the Director of the Compensation Service pursuant to the provisions of 38 C.F.R. § 4.16(b). KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Pak 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.