Citation Nr: 21042448
Decision Date: 07/13/21	Archive Date: 07/13/21

DOCKET NO. 13-18 821
DATE: July 13, 2021

REMANDED

Entitlement to a total disability based upon individual unemployability (TDIU) on an extraschedular basis prior to October 19, 2015, is remanded.

REASONS FOR REMAND

The Veteran served on active duty from October 1966 to May 1969. 

This claim was most recently before the Board in January 2021 and remanded for additional development. Subsequent to the Board remand, service connection was granted in an April 2021 rating decision for lumbar spine degenerative arthritis and degenerative disc disease. As such, this issue has been granted in full and is no longer before the Board.

The Veteran has been in receipt of a TDIU effective from October 19, 2015. Prior to that date, he did not meet the criteria for TDIU consideration under 38 C.F.R. § 4.16 (a). He was in receipt of a combined 50 percent disability rating effective from July 21, 2008, and a combined 60 percent disability rating effective from May 12, 2010. The Board is prohibited from assigning a TDIU on the basis of 38 C.F.R. § 4.16 (b) in the first instance without ensuring that the claim is referred to VA's Director of Compensation Service for consideration of an extraschedular rating under 38 C.F.R. § 4.16 (b). Bowling v. Principi, 15 Vet. App. 1 (2001). As the record shows some evidence the Veteran was unemployable prior to October 19, 2015, and the record does not show that the claim was ever submitted to the VA's Director of Compensation Service for extraschedular consideration, remand is needed for this purpose.

The matters are REMANDED for the following action:

Refer the claim of entitlement to TDIU to the Under Secretary for Benefits or the Director of Compensation and Pension Services for consideration of assignment of a TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16 (b).

 

 

J. Komperda

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Perkins, Michael

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 This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.