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Reasons and bases of my BVA decision


hurryupnwait
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Question

Anyone have experience with sending their claim to the Director of Compensation for Extraschedular consideration?

REASONS FOR REMAND

1. Entitlement to an earlier effective date for a total rating based on individual unemployability (TDIU) is remanded.

The Veteran asserts entitlement to an earlier effective date for his TDIU. 

The Board notes that his TDIU is effective May 19, 2009. Prior to that date, the Veteran does not meet the criteria for consideration for entitlement to TDIU on a schedular basis because the combined rating does not satisfy the percentage requirements. In this regard, the Veteran does not have a single disability of 

60 percent disabling and he does not have a service-connected disability that is 

40 percent or greater with a total combined disability rating of 70 percent. 38 C.F.R. § 4.16(a).

Nevertheless, the Veteran may be entitled to a TDIU on an extraschedular basis if it is established that he is unable to secure or follow substantially gainful employment as a result of the effect of his service-connected disabilities. 38 C.F.R. § 4.16(b). 

Therefore, if the schedular percentage threshold criteria are not met, but there is evidence of unemployability due to service-connected disabilities, the case must be submitted to the Director, Compensation Services, for extraschedular consideration of a TDIU. 38 C.F.R. § 4.16(b). Neither the RO nor the Board may assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1, 10 (2001).

There is competent medical evidence, to include a July 2017 vocational assessment, suggesting that the Veteran was unable to work due to his service-connected lumbar disability during this time. See 09/05/2017 Medical Treatment Record – Non-Gov’t Facility. As such, the Board finds that a referral is warranted. 

This matter is REMANDED for the following actions:

1. Obtain any outstanding VA treatment records. All requests and responses for the records must be documented. If any records cannot be obtained, notify the Veteran and his representative of the missing records, the efforts taken, and any further efforts that will be made by VA to obtain such evidence, and allow him an opportunity to provide the missing records

2. Send appropriate notice to the Veteran regarding TDIU and complete any necessary development. This should include sending the Veteran an application form (VA Form 21-8940) and advising the Veteran of the necessity of notifying the AOJ of his employment history and his educational background for proper adjudication of the TDIU matter. He should be asked to specifically identify by date the period or periods during which he claims individual unemployability due to service-connected disabilities.

3. Refer the Veteran’s request for a TDIU per § 4.16(b) to the Director, Compensation Service, for extraschedular consideration as to whether his service-connected disabilities preclude him from participating in gainful employment prior to May 19, 2009.

4. After completion of the above, readjudicate entitlement to a TDIU considering all relevant evidence.

 
Edited by hurryupnwait
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Hopefully you got a lawyer.  You can still get one, if you filed a NOA in the appeal period.  Remember, CAVC lawyers are free "because" of eaja, in almost every case.  

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Mr. Carpenter is the best, and he should explain it to you.  What you posted appears to be  denial of some issues, remand of others, but I did not see issues awarded.  That may have been clearer in the decision.  You can bet Mr. Carpenter read it and understands it.  

You may be correct about the increase..again part of it is cut off, so its difficult to read.  The right side of the page is cut off.  

Edited by broncovet
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Bump Bump Bumping Up!!!!!!

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The most recent Extraschedular TDIU award  I found at VA (Dec2019)is here at the BVA:

"ORDER An extraschedular total disability rating based on individual unemployability due to service-connected disability (TDIU), under 38 C.F.R. § 4.16(b), is granted."

The appeal was due to a September 2011 rating decision.

 

https://www.va.gov/vetapp19/files12/19193003.txt

In this case , decision dated June 2019 (On appeal since 2010-with two remands since):

"CONCLUSION OF LAW An extraschedular TDIU rating is warranted. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.340, 3.341, 4.16(b)."

https://www.va.gov/vetapp19/files6/19145939.txt

This type of claim never goes too fast.

 

 

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