Citation Nr: 23020105 Decision Date: 03/31/23 Archive Date: 03/31/23 DOCKET NO. 15-41 226 DATE: March 31, 2023 THE ISSUE Entitlement to an extraschedular total disability evaluation based on individual unemployability (TDIU). REMANDED Entitlement to an extraschedular TDIU is remanded. REASONS FOR REMAND The Veteran served on active duty between May 1973 and March 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In October 2021, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge (VLJ); a transcript of that hearing is of record The Board remanded the issue on appeal, along with issues of service connection for a heart disability (claimed as chest pain and a heart disability) and hypertension, for additional development in April 2018, June 2022, and most recently in November 2022. In a February 2023 rating decision, the RO granted service connection for the Veteran's heart disability and hypertension. which is a full grant of the benefit sought on appeal, so those issues are no longer before the Board. Entitlement to an extraschedular TDIU is remanded. Remand is necessary to refer the issue for extraschedular consideration by the Director of Compensation Service in accordance with 38C.F.R. §4.16(b). Although the Veteran does not meet the schedular percentage requirements for a TDIU under 38C.F.R. §4.16(a), records associated with the claims file indicate that entitlement to a TDIU may be warranted. The Board itself may not assign an extraschedular rating in the first instance. Bowling v. Principi, 15 Vet. App. 1, 10 (2001) (recognizing that "the [Board] is not authorized to assign an extraschedular rating in the first instance under 38C.F.R. §3.321(b)" or §4.16(b)). Although the holding of Bowling has been questioned, see Wages v. McDonald, 27 Vet. App. 233, 239-240 (2015) (Kasold, C.J., concurring) ("The Bowling holding was rendered with little analysis of 38 C.F.R. § 4.16(b) or its interplay with the statutory scheme for adjudicating claims, which requires decisions of an agency of original jurisdiction to be appealed to the Board and final decisions to be rendered by the Board, see 38 U.S.C. §§ 7104 and 7105. Frankly, Bowling appears to be wrongly decided"), the Court has declined to address whether it should be overruled. See Stafford v. Wilkie, No. 18-4520, 2020 U.S. App. Vet. Claims LEXIS 662 (Apr. 15, 2020) (nonprecedential panel Order) (dismissing the appeal as moot) and id., slip op at 2 (Greenberg, J., dissenting) ("What evil lurks behind the Court deciding whether Bowling v. Principi, 15 Vet. App. 1 (2001) remains good law?"). Thus, the Board cannot address in the first instance whether the Veteran is entitled to a TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). See also Snider v. McDonough, No. 19-6707, 2022 U.S. App. Vet. Claims LEXIS 775 (May 20, 2022) (Nonprecedential Order) (denying VA's motion for full-Court review in which it asked the Court to overrule Bowling). The matters are REMANDED for the following action: 1. Refer the issue of entitlement to an extraschedular TDIU to VA's Director, Compensation Service, per 38C.F.R. §4.16(b). 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. E. Geary 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.