EED RAISED ISSUE OF TDIU BACK TO 1998 BUT THEN REMANDED FOR AN EVEN EARLIER DATE FOR 1973.

[pacmanx1]

I think someone asked could and EED raise the issue of, if a veteran could get an earlier TDIU effective date.

I think someone asked for this and you can read it for yourselves, yes, it is very possible. As to any and all claims it boils down to what is actually in the veteran's records both SMRs and post medical records. Found this searching for something else. The appeal was remanded and possible for the veteran to get TDIU back to February 7, 1973. Hope this helps.

The Board notes that the Veterans Law Judge who conducted the October 2016 has since retired from the position of Veterans Law Judge. In November 2020, the Veteran was notified of this information and afforded the opportunity for another hearing, pursuant to 38 C.F.R. § 20.707 (noting that a Veterans Law Judge who conducts a hearing on appeal must participate in any decision made on that appeal). See also 38 U.S.C. § 7107(c). This November 2020 letter also informed the Veteran that if he did not respond to the letter within 30 days, the Board will assume that he did not want another hearing. The Veteran did not respond to this letter and the Board is proceeding with adjudication. 

In short, the Veteran seeks an effective date of February 14, 1973, for a 40 percent rating for his service-connected lumbar strain. See Correspondence (rec'd Oct. 7, 2020), at Page 1 of 10.  By virtue of the VA examination performed on this date, the Board agrees with this assessment and grants this claim in full.  With respect to the claim for a TDIU, the Board concludes that by virtue of granting the claim for an earlier effective date of 40 percent for the lumbar spine, the Veteran who also receives a 50 percent rating for service-connected depression effective August 17, 1988, only satisfies the criteria for schedular eligibility for a TDIU effective August 17, 1988. See 38 C.F.R. § 4.16(a).  As a result, the Board can grant the Veteran's claim for an earlier effective date for a TDIU claim only to August 17, 1988, but no earlier, at this time. 

1. Entitlement to a rating of 40 percent effective February 7, 1973, but no higher and no earlier, for a service-connected lumbar strain is granted. 

2. Entitlement to an effective date of August 17, 1998, but no earlier, for a rating of a TDIU is granted. 

REASONS FOR REMAND

 1. Entitlement to a TDIU prior to August 17, 1998, is remanded.

https://www.va.gov/vetapp21/Files6/21035463.txt

Late night posting and Fibro Fog.

 

 

Edited February 1, 2022 by pacmanx1

[Rivet62]

2 hours ago, pacmanx1 said:

REASONS FOR REMAND

 1. Entitlement to a TDIU prior to August 17, 1998, is remanded.

https://www.va.gov/vetapp21/Files6/21035463.txt

Whoa. This decision was made by the Board!? I thought this kind of ruling would have to go higher than the Board.  I read on an attorney's website that VA cannot penalize a veteran for trying to work full time. I can't find the link.  As it may pertain to me, I am embarrassed to say that there were just 3 separate years in the span of a 35 year work history that I made over the poverty line since discharging from service. So, the case link you provided is meaningful to my context as far as I can see. I can't see what came before this ruling, nor can I see how closely the veteran's case matches mine. But anyway, thanks for this link.

The case shows TDIU has been remanded, but will the vet have to fight the VARO to actually have it applied? I've seen here and elsewhere that a VARO has slacked off on a Board decision and the vet has to press the VARO to act.

[Berta]

NICE! Thanks- for posting this:

I liked this part:

"To the extent that the Veteran's attorney advocates for a TDIU effective any earlier than the Veteran's schedular eligibility, see Correspondence (rec'd Oct. 7, 2020), supra, at Page 1 of 10 ("After review of this argument and evidence of record, the Board should grant a February 6, 1985 effective date for TDIU. Alternatively, the Board should grant TDIU effective August 17, 1988, the Board concludes that it must remand such a remaining portion of the claim for extraschedular consideration.) As the matter has not yet been referred to the Director of Compensation Service, the Board simply does not have jurisdiction to adjudicate TDIU on an extraschedular basis in the first instance. Subject to the above, the Board reasserts jurisdiction accordingly. The Board concludes that because it is granting maximum benefits to the Veteran subject to matters within its jurisdiction, the Veteran cannot be prejudiced by any perceived failure of substantial compliance with previous remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998)."

The veteran never received extraschedular consideration at the RO Level.

The Extra-schedular regulations were amended in 2017 :

https://www.federalregister.gov/documents/2017/12/08/2017-26523/extra-schedular-evaluations-for-individual-disabilities

The case above gives the citation for this in 38 CFR 4.16(b)

"In exceptional circumstances, where the Veteran does not meet the percentage requirements, a total rating may be assigned on a showing that the individual is indeed unable to obtain or retain substantially gainful employment because of service-connected disability or disabilities. 38 C.F.R. § 4.16(b)."

Forgot to add, the VARO posthuously awarded my husband100% P & T with a very favorable EED-as I explained in anither recet post here.

Nothing is impossible! But Evidence is everything!

Here is another one:

"ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) on an extra-schedular basis beginning on July 17, 2015 is granted. FINDING OF FACT Since July 17, 2015, the Veteran has been unable to obtain or maintain substantially gainful employment due to his service-connected disabilities."

https://www.va.gov/vetapp21/Files5/21032579.txt

and

https://www.va.gov/vetapp21/Files9/21056394.txt

and

https://www.va.gov/vetapp21/Files7/21041491.txt

Extra-schedular TDIU granted and  more at the BVA.

 

 

 

Edited February 1, 2022 by Berta
added more.

[Rivet62]

3 hours ago, Berta said:

Nothing is impossible! But Evidence is everything!

Thank you so much.  It's encouraging. Sometimes we lack courage.

[pacmanx1]

Try typing in the docket number. 

DOCKET NO. 08-22 781

[pacmanx1]

Here are more details.

Citation Nr: 21035463
Decision Date: 06/09/21	Archive Date: 06/09/21

DOCKET NO. 08-22 781
DATE: June 9, 2021