Citation Nr: 21029083
Decision Date: 05/12/21	Archive Date: 05/12/21

DOCKET NO. 16-12 099
DATE: May 12, 2021

REMANDED

Entitlement to an effective date prior to July 7, 2017, for the grant of a total disability rating based on individual unemployability (TDIU) is remanded.

REASONS FOR REMAND

The Veteran served on active duty from September 1965 to January 1969 and April 1972 to December 1997.

Entitlement to an effective date prior to March 23, 2018, for the grant of a TDIU was remanded by the Board for additional development in September 2019. 

During the pendency of the appeal, the Agency of Original Jurisdiction (AOJ) granted entitlement to a TDIU from July 7, 2017; however, given that the issue of TDIU was on appeal as part and parcel of the increased disability rating claim for a lumbar spine disability of January 18, 2012, the grant of an earlier effective date for TDIU, effective July 7, 2017, was not a full grant of the benefit sought, and the issue of entitlement to a TDIU prior to July 7, 2017 remains on appeal. See Harper v. Wilkie, 30 Vet. App. 356, 361- 62 (2018).

Entitlement to an effective date prior to July 7, 2017, for the grant of a TDIU is remanded.

As noted in the September 2019 remand, the Veteran's combined disability rating is less than 70 percent for the period currently on appeal and the Veteran does not meet the schedular criteria for a TDIU under 38 C.F.R. § 4.16 (a). However, at that time, the Board determined that referral to VA's Director of Compensation Service for consideration of TDIU on an extraschedular basis was warranted for any period of the appeal that the threshold requirements for TDIU were not met.

Unfortunately, referral to VA's Director of Compensation Service for consideration of TDIU on an extraschedular basis for the period was not completed as the Veteran did not respond to requests for employment information for the relevant period. The Board, however, finds that referral is still required for the period from December 1, 2013 to July 7, 2017 when it has been confirmed that the Veteran was no longer working. See VA 21-4192 received August 30, 2018. As the Board cannot address in the first instance whether the Veteran is entitled to TDIU on an extraschedular basis, a remand for such a referral is warranted.

The matters are REMANDED for the following action:

Refer the issue of entitlement to a TDIU from December 1, 2013 to July 7, 2017, to the Director of Compensation for consideration of TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16 (b).

 

 

K. Parakkal

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	P.M. Johnson, 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.