Citation Nr: 22016129
Decision Date: 03/21/22	Archive Date: 03/21/22

DOCKET NO. 08-26 497
DATE: March 21, 2022

ORDER

Entitlement to a total disability rating based on individual unemployability (TDIU) is denied.

FINDING OF FACT

The Veteran has been incarcerated at a Texas Department of Corrections since November 1993, where he is serving a life sentence for felony convictions. 

CONCLUSION OF LAW

The assignment of a TDIU is denied as a matter of law. 38 U.S.C. § 5313 (c); 38 C.F.R. § 3.341 (b).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had honorable active service in the United States Navy from August 1977 to October 1, 1981.  

The Veteran had a second period of active service from October 2, 1981, to May 1986 and was discharged under other than honorable conditions due to Misconduct-Commission of a Serious Offense.

This matter was remanded by the Board in May 2021 as it was determined that the issue of TDIU was raised by the Veteran but not adjudicated.

1. Entitlement to a total disability rating based on individual unemployability (TDIU) 

The Veteran has asserted that his service-connected disabilities, to specifically include PTSD, prevent him from sustaining gainful employment.

Specific provisions for a TDIU apply to incarcerated Veterans. Under 38 C.F.R. § 3.341(b), a rating for a TDIU which would first become effective while a Veteran is incarcerated in a penal institution for conviction of a felony, shall not be assigned during such period of incarceration. See 38 U.S.C. § 5313(c). Adjudication of a TDIU is prohibited if that rating would begin while the Veteran is incarcerated for a felony conviction. See VAOPGCPREC 13-97 (Apr. 7, 1997). Accordingly, entitlement to a TDIU may be denied as a matter of law if the TDIU rating would commence during a period of incarceration for a felony.

The evidence of record reflects that the Veteran has been incarcerated since November 1993 for felony convictions. The February 2018 Report of Incarceration shows that the Veteran is serving a life sentence. 

 

As a result of his sentence and incarceration, a TDIU is not warranted as a matter of law. See 38 U.S.C. § 5313(c); see also 38 C.F.R. § 3.341(b).

 

 

Garrett Morales

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. Dworkin, 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 This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.