Citation Nr: 21024099 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 17-23 056 DATE: April 22, 2021 REMANDED Entitlement to an earlier effective date than July 19, 2010 for total disability evaluation based on individual unemployability, due to service-connected disabilities (TDIU), is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from April 1985 to July 1989. In September 2020, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. Entitlement to an earlier effective date than July 19, 2010 for TDIU. The date of the current grant of TDIU is from July 19, 2010. In the period in which the Board is considering evidence, starting approximately one year prior to January 7, 2003, the Veteran was service-connected for lumbar-spine disorder at 40 percent from June 29, 2001. He was service-connected for right-foot disorder at 100 percent from March 12, 2003, 30 percent from August 1, 2003, 100 percent from May 28, 2004, 10 percent from August 1, 2004, and 30 percent from July 19, 2010. He was service-connected for left-hip strain at 10 percent from January 7, 2003. The Veteran’s combined rating for service-connected disorders was at 40 percent from June 29, 2001, 50 percent from January 7, 2003, 100 percent between March 12, 2003 and July 31, 2003, 70 percent from August 1, 2003, again at 100 percent from May 28, 2004, and 50 percent from August 1, 2004. As a TDIU may be assigned when the combined schedular rating for service-connected disabilities is less than 100 percent when they preclude securing or following a substantially gainful occupation, the Board need not consider evidence in the 2 above periods of temporary total ratings (100 percent). Nonetheless, between August 1, 2003 and May 28, 2004, the combined rating of 70 percent satisfies the regulatory threshold of one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). However, combined at their highest prior to March 12, 2003, from July 31, 2003 to August 1, 2003 (a 1-day period, as stated in the code sheet) and from August 1, 2004 to July 19, 2010, the Veteran’s service-connected disabilities were never at more than 50 percent, thereby not satisfying the regulatory threshold for TDIU. That notwithstanding, 38 C.F.R. § 4.16 (b) provides an alternative, “extraschedular” basis for a grant of a total rating, by which the Board will remand the matter to the Agency of Original Jurisdiction (AOJ) for referral to the Director, Compensation Service, for extraschedular consideration for TDIU in the above relevant periods prior to July 19, 2020. Neither the AOJ nor the Board is permitted to assign an extraschedular rating in the first instance. Floyd v. Brown, 9 Vet. App. 88, 95 (1996)). However, the Board may review the later determinations of the Director. Anderson v. Shinseki, 22 Vet. App. 423, 427. The record in the relevant periods reveals potentially exceptional aspects associated with the Veteran’s disabilities, such as limitations of movement, effects of chronic pain on sleep and effects of medication on memory, concentration and focus as possibly precluding the prospect of an employment alternative of a sedentary nature. Although the period of August 1, 2003 through May 24, 2004 is not for consideration by the Director, the period remains effectively inextricably intertwined with this remand for extraschedular consideration for the relevant periods prior to July 19, 2010 and the Board therefore defers appellate consideration of the record between August 1, 2003 and May 24, 2004 until the case is returned. For the reasons stated, the matter is remanded to the AOJ for referral to the Director. The matter is REMANDED for the following action: 1. The issue of an earlier effective date for the grant of a TDIU on an extraschedular basis in the relevant periods prior to July 19, 2010 should be referred to the Director, Compensation Service, for consideration and decision. 2. Thereafter, the AOJ should readjudicate the matter, to include the period not subject to extraschedular consideration by the Director of August 1, 2003 through May 24, 2004. If the benefits sought are not granted, provide the Veteran and his representative with a Supplemental Statement of the Case, and allow an appropriate opportunity to respond before returning the case to the Board. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Franke, 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.