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Court Wins

BVA errs in denying earlier effective date for TDIU, extraschedular referral for adjustment disorder

Michael Lostritto

February 12, 2018

Updated: February 16, 2024

BVA errs in denying earlier effective date for TDIU, extraschedular referral for adjustment disorder


The Veteran served on active duty in the U.S. Army from March 1974 through April 1994.  In September 2007, she filed a claim for service connection and compensation for depression.  She cited this condition as secondary to her abdominal hysterectomy.  In December 2008, the RO awarded her service connection for adjustment disorder with depressed mood, as secondary to her service-connected hysterectomy.  She was assigned a 10% rating, effective September 2007.  The Veteran appealed, noting she was unemployable, and citing that Social Security characterized her as totally disabled.  In 2009, she applied for TDIU due, in part, to her depression.  She reported that she became too disabled to work in April 2006.

In June 2010, the RO increased the Veteran’s rating to 50%, effective February 2009.  That same month she received a grant for TDIU.  The RO characterized her March 2009 statement as a “request for an increased evaluation.”  It also noted that the evaluation of her adjustment disorder prior to February 9, 2009, was under review.

In June 2010, VA issued a Statement of the Case, confirming the 10% rating for adjustment disorder effective September 2007 and the 50% rating, effective February 2009.  The SOC did not discuss the award of, or effective date for, the TDIU rating.  In July 2010, the Veteran filed a Substantive Appeal, appealing all issues.

Board denied higher rating for  adjustment disorder

In its decision here on appeal, the Board determined that prior to February 2009, the Veteran was entitled to a 30% disability rating for her adjustment disorder.  In its analysis, it considered the medical evidence of record, including November 2007 and April 2008 VA mental health assessments.  Based on this evidence, the Board determined that the Veteran’s condition was “manifested by depressed mood and sleep impairment”; that she “maintained social and familial relationships”; and that her symptoms “demonstrate[d] occupational and social impairment with occasional decrease in work efficiency and intermittent inability to perform occupational tasks.”  It denied extraschedular referral because it determined the Veteran’s assigned schedular rating was adequate to rate her disability.  The Board also entirely failed to address whether the  Veteran’s TDIU award warranted an earlier effective date.

CCK appeals to the Court

CCK successfully appealed these issues to the Court.  It specifically cited the Board’s failure to adjudicate the issue of entitlement to an earlier effective date for TDIU.  It also noted that the Board erred in its denial of extraschedular referral.

CAVC agrees with CCK’s arguments

CCK argued, and the Court agreed, that the Veteran raised the issue of the proper effective date for the award of TDIU in her July 2010 appeal of “all the issues listed” in the SOC.  The SOC did not did expressly discuss the award of, or effective date for, TDIU.  However, as noted by the Court, that issue was not a freestanding claim for benefits.  Rather, it was part of her appeal of the initial disability rating for her adjustment disorder with depressed mood.

Since the Veteran first filed her original service connection claim for depression in 2007, and since her TDIU request was part of her initial appeal of that claim, the Board should have considered the Veteran’s entitlement to TDIU as far back as 2008.  Because the Veteran raised the issue, the Board erred by not addressing it.  Thus, the Court remanded the issue for the Board to provide a decision as to the proper effective date for TDIU, or to remand to the AOJ for development as needed.

Additionally, CCK argued, and the Court agreed, that the Board’s statement of reasons or bases was inadequate to facilitate judicial review with regard to its denial of extraschedular referral.  The Board stated that the rating schedule adequately contemplated the Veterans symptoms throughout the appeal period.  Furthermore, it claimed that the Veteran did not show extraordinary symptoms.  However, without supporting analysis or explanation, this statement was insufficient.  If, on remand, the Board determined that the Veteran is not entitled to TDIU prior to February 2009, the Court directed the Board to readjudicate the issue of whether referral for an extraschedular disability rating is appropriate.

About the Author

Bio photo of Michael Lostritto

Michael joined CCK in September of 2016 as an Attorney, was named Supervising Attorney in 2021, and now serves as a Managing Attorney. His practice focuses on the representation of disabled veterans before the Department of Veterans Affairs and the United States Court of Appeals for Veterans Claims.

See more about Michael