10-49 744
10-49 744
| Board of Vet. App. | Mar 31, 2017Background
- Veteran served on active duty July 1980–March 1981 and has sought a TDIU claim on appeal from a November 2007 RO decision.
- Veteran has been assigned a 100% schedular rating effective July 9, 2008, but the Board treats the TDIU claim as potentially effective prior to that date.
- Record shows the Veteran receives Social Security disability benefits; SSA decision suggests benefits may have been granted based on service‑connected disabilities.
- Prior to July 9, 2008, the Veteran does not meet the schedular percentage thresholds of 38 C.F.R. § 4.16(a).
- Evidence of severe disability related to service‑connected conditions exists, prompting consideration of extraschedular TDIU under 38 C.F.R. § 4.16(b).
- The Board remanded for further development: obtain SSA records and refer the claim to the Director of the Compensation Service for extraschedular consideration for the period before July 9, 2008, then readjudicate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to TDIU (effective date: claim through present) | Veteran argues unemployable due to service‑connected disabilities and seeks TDIU for period including prior to 7/9/2008 | VA/Board notes 100% schedular rating from 7/9/2008 but argues TDIU still may be relevant (e.g., for SMC) and that schedular thresholds not met pre‑7/9/2008 | Remanded: obtain SSA records; refer to Director for extraschedular TDIU consideration for pre‑7/9/2008 period; readjudicate and issue SSOC if denial remains |
Key Cases Cited
- Bradley v. Peake, 22 Vet. App. 280 (2008) (holding a single disability supporting TDIU plus other service‑connected disabilities separately ratable at 60%+ can support SMC)
- Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (discussing when SSA records must be obtained under the duty to assist)
- Hyatt v. Nicholson, 21 Vet. App. 390 (2007) (stating relevance of records cannot be known with certainty before obtaining them)
- Bowling v. Principi, 15 Vet. App. 1 (2001) (Board must refer cases that fail schedular criteria but may warrant extraschedular TDIU to Compensation Service Director)
- Kutscherousky v. West, 12 Vet. App. 369 (1999) (veteran retains right to submit additional evidence after remand)