Citation Nr: A25035367 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 240820-465442 DATE: April 16, 2025 ORDER Entitlement to an earlier effective date of July 2, 2021 for the award of a total disability rating based on individual unemployability (TDIU), with the exception of the period from December 2, 2021 to March 6, 2022, is granted. REMANDED Entitlement to a TDIU from December 2, 2021 to March 6, 2022, on an extraschedular basis, is remanded. FINDING OF FACT From July 2, 2021, the Veteran's service-connected disabilities prevented him from securing and following a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to an earlier effective date of July 2, 2021 for the award of a TDIU have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.400, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1975 to July 1981. The rating decision on appeal was issued in March 2024 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the August 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the March 2024 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. However, because the Board is remanding the claim for an extraschedular TDIU, any evidence the Board could not consider will be considered by the AOJ in the adjudication of that claim. 38 C.F.R. § 3.103(c)(2)(ii). Entitlement to an effective date earlier than January 30, 2024 for the award of a TDIU The Veteran is currently in receipt of a TDIU from January 30, 2024. He seeks an earlier effective date, but has not put forth any specific arguments as to why he believes he is entitled to this benefit. Generally, the effective date of an award of compensation based on a claim for increase shall be fixed in accordance with the facts found, but shall be no earlier than the date of receipt of the application therefor. 38 U.S.C. § 5110(a). The statutory provision is implemented by regulation which provides that the effective date for an evaluation and award of compensation based on a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. A TDIU can be assigned if the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that the veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16(a). From July 2, 2021, the Veteran is in receipt of service connection for asthma with chronic obstructive pulmonary disease (COPD), rated 60 percent disabling. This was his only disability at that time. From October 19, 2021, the Veteran also became in receipt of service connection for hidradenitis suppurativa, rated 10 percent disabling, and a head scar, rated 30 percent disabling. The Veteran's combined disability rating was 80 percent. However, on December 2, 2021, the Veteran's rating for asthma with COPD was reduced to 30 percent, and his total combined disability rating became 60 percent. On March 7, 2022, the Veteran's rating for asthma with COPD was increased back to 60 percent, which resulted in his combined disability rating returning to 80 percent. Based on foregoing, the Board finds that the Veteran met the percentage requirements for a schedular TDIU under 38 C.F.R. § 4.16(a) from July 2, 2021, with the exception of the period from December 2, 2021 to March 6, 2022. Therefore, July 2, 2021 is the date entitlement arose. Historically, the Veteran filed his claim for a TDIU on July 26, 2012, and it was thereafter continuously adjudicated as part and parcel of an increased rating claim for asthma, until awarded by the AOJ in a March 2024 rating decision. Therefore, July 26, 2012 is the date of the claim. Review of the medical evidence shows that from July 2, 2021, the Veteran's service-connected disabilities prevented him from securing and following a substantially gainful occupation. According to the Veteran's VA Form 21-8940, he last worked in 2008 as a forklift operator. Prior to that, he worked for the United States Postal Service. A July 2021 VA examiner determined that the Veteran's asthma with COPD impacts his ability to work due to shortness of breath and lack of stamina. An August 2021 VA examiner further noted that his asthma with COPD precludes physical or laborious work and he would need to keep his rescue inhaler available to use as needed. The examiner determined in an individual unemployability statement that the Veteran was limited to sedentary work. In December 2021, a VA examiner remarked that the Veteran has shortness of breath with minimal activity. In March 2022, a VA examiner determined that the Veteran cannot tolerate any strenuous activities such as walking one to two blocks. Finally, at an October 2022 VA examination, an examiner noted that hidradenitis suppurativa, which causes painful boils with discharge on the buttocks and groin, makes sitting very painful for the Veteran. As a result of these symptoms, he does not leave the house much and must wear absorbent undergarments. In light of the foregoing evidence, the Board finds that the evidence weighs in favor of finding that the Veteran's service-connected disabilities prevented him from securing and following a substantially gainful occupation from July 2, 2021, when he became eligible for a schedular TDIU. As noted above, VA regulation provides that the effective date of an award of increased compensation will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. Here, the date of receipt of the claim is July 26, 2012, and the date the Veteran became eligible for a schedular TDIU is July 2, 2021. The later of the two dates is July 2, 2021 and the proper effective date. Accordingly, an earlier effective date of July 2, 2021 for the award of a TDIU is granted. However, for the period from December 2, 2021 to March 6, 2022, the Veteran is not eligible for a TDIU on a schedular basis. Extraschedular consideration of this period is discussed in the REMAND section below. REASONS FOR REMAND Entitlement to a TDIU from December 2, 2021 to March 6, 2022, on an extraschedular basis, is remanded. As noted above, the Veteran did not meet the percentage requirements for the assigment of a schedular TDIU under 38 C.F.R. § 4.16(a) during the period from December 2, 2021 to March 6, 2022. However, pursuant to this Board decision, he is in receipt of a TDIU both before and after this period. Further, there is evidence that he was unemployable during this period due to his service-connected disabilities. The Board notes that when the percentage requirements of 38 C.F.R. § 4.16(a) are not met, entitlement to a TDIU may be considered on an extraschedular basis when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the veteran's background including his or her employment and educational history. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Instead, where a veteran does not meet the schedular requirements for a TDIU, the Board may only refer the claim to the Director of Compensation Service for extraschedular consideration. Id. Based on the evidence of record discussed above, the Board finds that the record contains sufficient evidence suggesting that the Veteran may be entitled to an award of a TDIU on an extraschedular basis during the period from December 2, 2021 to March 6, 2022. Consequently, remand is required for the AOJ to refer the claim to the Director of Compensation Service for an advisory opinion as to whether an extraschedular TDIU from December 2, 2021 to March 6, 2022 is warranted under 38 C.F.R. § 4.16(b). See 38 C.F.R. § 20.802(a) (permitting remand to satisfy any other statutory or regulatory duty to aid in substantiating the Veteran's claim). (Continued on next page) Accordingly, the matter is REMANDED for the following action: Refer the Veteran's claim to the Director of Compensation Service for consideration of the assignment of an extraschedular TDIU from December 2, 2021 to March 6, 2022, in accordance with the provisions of 38 C.F.R. § 4.16(b). J. NICHOLS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Melissa Barbee, 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.