tdiu Important case on Extra Schedular TDIU

[broncovet]

This is from the 2015 BVA Chairman's Report:  http://www.bva.va.gov/docs/Chairmans_Annual_Rpts/BVA2015AR.pdf

 

Wages v. McDonald, 27 Vet. App. 233 (2015):

. The Board also found that “medical and lay evidence suggests that the [Appellant] was unable to work prior to December 11, 2009[,] due to service-connected disabilities,” but the Board concluded that it lacked the authority to award TDIU for this period, because the Appellant did not meet the schedular criteria for TDIU in 38 CFR § 4.16(a) and remanded the matter to the Director of Compensation Service (Director) for extra-schedular consideration. The Director denied extra-schedular TDIU under 38 CFR § 4.16(b) and the RO implemented the Director’s denial in a supplemental statement of the case. The Board then denied extra-schedular TDIU relying, in part, on the Director’s opinion. At the CAVC, the Appellant argued that the Board erred in relying on the Director’s decision as evidence against his appeal for extra-schedular TDIU and that the Board owed no deference to the Director’s opinion and must review this decision de novo. The Secretary argued that the Director’s decision is not evidence and that the Board may only review the factual basis of the Director’s decision for accuracy and completeness, leaving the Board without authority to overturn the Director’s policy decision.

The CAVC rejected the Secretary’s argument, and held that the issue of entitlement to extra-schedular TDIU was not a policy question, but was a question of law and fact that fell within 38 U.S.C. § 511(a). The CAVC held that “the policy decision was made when the Secretary promulgated a regulation mandating that all Veterans who are unemployable due to service-connected disabilities will be rated totally disabled, regardless of the schedular ratings assigned.” The CAVC also found that the Board erred as a matter of law in assigning weight to the Director’s decision. The CAVC stated that the Director’s decision is the de facto decision of the RO and is not evidence that can be weighed. This case is significant because it establishes that the Board has jurisdiction to review de novo appeals concerning the matter of entitlement to extra-schedular TDIU after the Director has made a decision. 

Edited October 6, 2016 by broncovet

[Berta]

Fabulous Case! Thanks!