Citation Nr: 22016344
Decision Date: 03/22/22	Archive Date: 03/21/22

DOCKET NO. 17-25 669
DATE: March 22, 2022

REMANDED

Entitlement to a total disability rating for compensation based upon individual unemployability (TDIU) from September 20, 2012 through September 19, 2013, to include on an extraschedular basis, is remanded.

REASONS FOR REMAND

The Veteran served on active duty from September 1979 to September 1987.  He appeals from a July 2015 agency of original jurisdiction (AOJ) rating decision that granted a TDIU rating with an effective date of September 20, 2013. 

The Veteran withdrew a request for a Board hearing in August 2020.  

As noted in a September 2021 Board remand on the matter at issue, this is a Legacy appeal. The procedural history was set forth in detail in that decision, but will be summarized briefly. An August 2013 rating decision denied a September 2012 claim for TDIU and became final, as the Veteran did not file a notice of disagreement with it or submit new and material evidence within 1 year of the August 2013 notification.  A TDIU from September 20, 2013, the date which the AOJ treated as the date of the next claim, was awarded in July 2015.  A claim for TDIU is inferred from the Veteran's September 2013 increased rating claim.  The Veteran expressed disagreement with that decision in December 2014 and, in his March 2015 clarification, expressly identified the issue of TDIU.  Accordingly, as the Veteran was considered to have timely filed an NOD as to the March 2014 rating decision, the inferred TDIU claim remained pending until the July 2015 rating decision. The effective date of an award of TDIU may be up to one year prior to the date of a TDIU claim, thus broadening the period on appeal to include up to one year prior to the September 2013 claim.

A schedular TDIU rating is already in effect for the period beginning September 20, 2013. Although the Veteran's disability picture during the period on appeal (from September 20, 2012 through September 19, 2013) does not meet the criteria set forth at 38 C.F.R. § 4.16(a), a total disability rating may also be assigned on an extraschedular basis, pursuant to 38 C.F.R. § 4.16(b).

In September 2021, the Board remanded the claim so that it could be referred to the Director of Compensation Services for consideration of an extraschedular TDIU. This was accomplished in November 2021. 

Unfortunately, additional development is warranted. The Veteran submitted a private medical opinion which bears on the matter of TDIU in August 2019.  It references the fact that the Veteran was awarded Social Security Administration disability insurance benefits in 2012.  These records are relevant to the TDIU claim.  It does not appear that the AOJ attempted to obtain these records and so the Board must remand to obtain them. 

The matters are REMANDED for the following action:

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The AOJ should obtain a copy of any decision to grant or deny SSA benefits to the Veteran and the medical records upon which that decision was based and associate them with the claims file.  If the search for such records has negative results, the claims file must be properly documented as to the unavailability of those records.

 

Rebecca N. Poulson

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	C. Lawson

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.