Citation Nr: 21031677 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 16-39 607 DATE: May 24, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) on an extraschedular basis prior to May 16, 2014, is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1979 to June 1994. The matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board last remanded the issue of entitlement to a TDIU on an extraschedular basis for referral to the Director of Compensation (Director) for extraschedular consideration in November 2018. The RO referred the issue to the Director in June 2020. As such, a review of the record shows substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to a TDIU on an extraschedular basis prior to May 16, 2014, is remanded. As a matter of background, the Veteran submitted increased rating claims for his service-connected chronic low back strain and right ankle disabilities on May 16, 2014. The Veteran also submitted a November 2014 VA Form 21-8940, application for increased compensation based on unemployability. The Board notes the Veteran's claim for a TDIU is part and parcel of his claims for an increase. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Generally, the effective date of an award of an increased rating is the date of receipt of a claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. If the earlier date that the claimed increase in disability had occurred was factually ascertainable based on all evidence of record within one year prior to the receipt of claim, the effective date is the date such increase occurred. See 38 C.F.R. § 3.400(o)(2). A claim of entitlement to a TDIU is a claim for increased compensation, and the effective date rules for increased compensation apply to a TDIU claim. See Hurd v. West, 13 Vet. App. 449 (2000). Therefore, the relevant rating period is from May 16, 2013, one year prior to receipt of the claim, through the present. 38 C.F.R. § 3.400(o)(2). In this case, the RO awarded the Veteran extraschedular TDIU pursuant to 38 C.F.R. § 4.16(b) effective May 16, 2014, the date of receipt of the Veteran's claim for increased ratings for his service-connected chronic low back strain and right ankle disabilities. See August 2020 rating decision. The RO based the award on a July 2020 Advisory Opinion from the Director. Prior to May 16, 2014, the Veteran was service-connected for chronic low back strain, rated as 20 percent disabling; residuals of right ankle fracture and degenerative arthritis, rated as noncompensable. In an August 2020 Supplemental Statement of the Case, the RO acknowledged the award of a TDIU effective May 16, 2014, but no earlier, represented a partial grant of benefits sought on appeal for this issue based on the Director's Advisory Opinion. However, it is unclear whether the Director considered whether the Veteran was entitled to a TDIU on an extraschedular basis at any time during the one-year period prior to receipt of the Veteran's claims for increased compensation. In that regard, the Director determined the preponderance of the evidence supported the contention that the Veteran's service-connected condition(s) resulted in occupational and social impairment with reduced reliability and productivity or worse from May 16, 2014 and limitations from service-connected conditions by themselves preclude the Veteran from obtaining and maintaining any form of gainful employment consistent with education and occupational experience. See July 2020 Advisory Opinion. The Director noted that the Veteran last worked in marginal employment at Goodwill in July 2004 and that the Veteran completed high school but did not have any post-secondary education or specialized training. Id. During the one-year period on appeal prior to May 16, 2014, VA treatment records demonstrate the Veteran's complaints of chronic low back pain, and the Veteran reported increased back pain in August 2013 and March 2014. See June 2013, August 2013, December 2013, and March 2014 VA treatment records. The Veteran asserted that his chronic low back pain prevents him from securing or following any substantially gainful occupation. See November 2014 VA 21-8940. As such, on remand, the RO should refer the issue of entitlement to a TDIU prior to May 16, 2014 to the Director for a determination as to the Veteran's entitlement to an extraschedular TDIU pursuant to 38 C.F.R. § 4.16(b). The matters are REMANDED for the following action: 1. Refer this case to the Director of Compensation Service for consideration of whether the Veteran is entitled to the award of a TDIU at any time during the rating period prior to May 16, 2014 on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). The electronic claims file should be provided to the Director of Compensation Services. (Continued on the next page) The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. P. Moore, 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.