Section 1151 and TDIU

[Former Member]

I sure learned something the other day and want to post it here if anyone ever needs it-it is the sole decision at the BVA on this issue:

 

"With respect to whether the Veteran met the schedular criteria for a TDIU prior to September 20, 2010, he was in receipt of section 1151 compensation for the following disabilities prior to that date:  adjustment disorder with mixed anxiety and depressed mood, rated 10 percent disabling from April 16, 2001, through August 21, 2008, and 30 percent disabling from August 22, 2008, through September 19, 2010; and status postoperative right inguinal hernia repair with nerve entrapment syndrome involving fibers of the right anterior femoral cutaneous nerve, rated 10 percent disabling since April 16, 2001.  His combined disability rating was 20 percent from April 16, 2001, through August 21, 2008, and 40 percent from August 22, 2008, through September 19, 2010.  Hence, the Veteran did not meet the percentage requirements for a TDIU under 38 C.F.R. § 4.16(a) at any time prior to September 20, 2010.  See 38 C.F.R. § 4.16(a).  

VA policy, however, is to grant a TDIU in all cases where service-connected disabilities/disabilities that are the basis of section 1151 compensation preclude gainful employment, regardless of the percentage evaluations.  38 C.F.R. § 4.16(b).  The Board is prohibited from assigning a TDIU on the basis of 38 C.F.R. § 4.16(b) in the first instance without ensuring that the claim is referred to VA's Director of Compensation Service for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b).  Bowling v. Principi, 15 Vet. App. 1 (2001).  The Board can review the decision of the Director of Compensation Service to make an independent determination.  See Anderson v. Shinseki, 22 Vet. App. 423 (2008). "

https://www.va.gov/vetapp16/files1/1604664.txt