CCK Law Secures Landmark Victory in Witkowski v. Collins: Court Overturns Bowling v. Principi and Restores Board Authority Over Extraschedular TDIU

CCK Law: Our Vital Role in Veterans Law

In October 2025, the U.S. Court of Appeals for Veterans Claims issued a sweeping, en banc decision in Witkowski v. Collins. This ruling—argued by Chisholm Chisholm & Kilpatrick (CCK Law) attorney April Donahower—overturns more than twenty years of precedent and removes a major source of procedural delay for veterans seeking Total Disability based on Individual Unemployability (TDIU) on an extraschedular basis.

The Court explicitly overruled Bowling v. Principi (2001), ending the long-standing requirement that the Board of Veterans’ Appeals (Board) must first send extraschedular TDIU cases to the Director of Compensation before deciding them. For countless veterans, this change means faster decisions, fewer procedural dead ends, and a fairer path to benefits.

This case is also an example of CCK Law’s philosophy of systemic advocacy: each case is prepared meticulously and every argument is developed as though the case may one day be presented before a court. If a case exposes a recurring regulatory problem that harms tens of thousands of veterans, CCK aims to be ready to fix that problem not only for an individual client, but for all veterans who rely on this system.

Below is a breakdown of what happened in Witkowski, what the Court held, and why the decision matters.

Background: What Went Wrong Under Bowling v. Principi

For more than two decades, Bowling required the Board to follow a rigid two-step process for extraschedular TDIU:

1. If a veteran did not meet schedular TDIU criteria but evidence showed unemployability due to service-connected disabilities, the Board had to refer the case to the Director of Compensation for an initial opinion.
2. Only after the Director issued a decision could the veteran return to the Board for appellate review.

In practice, this mandatory detour caused years of delay. The Director usually denied these referrals, and the process duplicated adjudication that the Board could otherwise have completed in a fraction of the time. Veterans routinely waited several additional years after referral before the Board could make a final decision. Under AMA procedures, referral also forced many veterans to file a new notice of disagreement, sending the case back to the end of the appellate line.

This system trapped veterans like Mr. Witkowski, a Vietnam-era Navy veteran seeking the earliest possible effective date for TDIU based on hearing loss. Although evidence showed unemployability from the date of his claim, the Board believed that Bowling prevented it from granting TDIU before June 2021 without a referral. Because Mr. Witkowski explicitly waived referral and asked for a decision based purely on the evidence, the Board denied the earlier period outright, allowing the issue to be appealed to the Court of Appeals for Veterans Claims (Court).

This set the stage for the Court to address questions about jurisdiction, regulatory interpretation, and procedural fairness.

Hypothetical: Bowling in Action

1. The VA Regional Office (RO) adjudicating a Veteran’s claim chooses not send the issue of TDIU to the Director of Compensation under 38 CFR § 4.16(b) (extraschedular TDIU).
2. The Veteran appeals, chooses the hearing docket at the Board of Veterans’ Appeals, and waits five years for a hearing.
3. After the hearing, the Veteran waits another two years for a Board decision.
4. The Board decides that it cannot grant TDIU under 4.16(b) (due to Bowling) and so sends the Veteran’s case back to the RO with instructions to send to the Director.
5. Over the course of 3-9 months, the RO sends to Director, the Director recommends denial, and the RO accordingly denies it, meaning the Veteran has to re-appeal to the Board.
6. It will then take another 1-5 years (depending on the Board docket selected) for a Board decision on the issue.
7. The Board ultimately overrules the Director and grants TDIU under 4.16b, but Bowling has now added between 1.5 and 5.5 years—in addition to other VA delays—to reach this decision.

CCK Law’s Winning Arguments Before the Witkowski Court

1. “Only Congress Can Limit Board Jurisdiction”

CCK Law argued that Bowling was inconsistent with modern Supreme Court jurisprudence, holding that only Congress may impose jurisdictional limits on an adjudicatory body like the Board of Veterans’ Appeals. Because Congress gave the Board jurisdiction over “all questions in a matter” under 38 U.S.C. § 7104(a), the Board must be able to decide TDIU, including extraschedular TDIU, when a veteran appeals that issue. Therefore, an agency-promulgated regulation like the one requiring referral of extraschedular TDIU, 38 C.F.R. § 4.16(b), cannot be jurisdictional.

The Court agreed with CCK Law’s argument. It held that Bowling’s interpretation of VA’s regulation improperly constrained Board jurisdiction in conflict with Supreme Court authority and was therefore effectively overruled.

2. “The Regulatory Text Never Applied to the Board”

CCK Law also argued that the referral requirement never applied to the Board of Veterans’ Appeals in the first place.

The regulation at issue, 38 C.F.R. § 4.16(b), states:

“Rating boards should submit to the Director … all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards of § 4.16(a).”

CCK Law demonstrated that:

• Historically, “rating boards” were three-member panels located within regional offices.
• The Board of Veterans’ Appeals has always been a separate appellate tribunal.
• When VA intends to refer to the Board, VA uses the term “Board” explicitly in its regulations.

Therefore, § 4.16(b)’s reference to “rating boards” does not include the Board of Veterans’ Appeals, meaning the Board was never required to make these referrals.

The Court adopted this argument as well and held that Bowling’s reading of the regulation was incorrect. Bowling created a problem emblematic of delay, especially in AMA claims, where assertions of extraschedular TDIU referred to the Director by the Board would be forced to twice work their way up through VA’s long line of cases.

The Court’s Holding: Bowling is Overruled

The en banc Court concluded:

• Bowling v. Principi was “egregiously wrong.”
• The decision conflicted with later Supreme Court authority distinguishing jurisdictional rules from claim-processing rules.
• The mandatory referral process cannot be imposed on the Board because § 4.16(b) neither mentions nor applies to the Board.
• The Board may now decide extraschedular TDIU in the first instance, without referral to the Director of Compensation.

The Court vacated the Board’s denial of earlier-period TDIU for Mr. Witkowski and remanded the case for a new decision under the correct legal standard.

Why the Witkowski Decision Matters for Veterans

1. Faster Decisions and Elimination of Mandatory Referral Delays

Veterans seeking extraschedular TDIU will no longer face a procedural loop that delays adjudication for years. The Board can weigh evidence and issue its own decision directly.

2. Greater Consistency in TDIU Outcomes

Previously, two veterans with identical evidence could experience different procedural outcomes depending on whether referral was ordered. This decision restores uniformity and consistency across cases.

3. Stronger Access to Judicial Review

Under Bowling, veterans had to navigate a multi-step process that made meaningful review difficult. Now the Board must address extraschedular TDIU directly, creating a clearer record for appeal and judicial oversight.

4. System-Level Impact Beyond a Single Case

This ruling affects not just Mr. Witkowski, but potentially hundreds of thousands of veterans who have raised or will raise extraschedular TDIU.

It also improves administrative efficiency for VA employees who struggled with the procedural complexity created by Bowling.

How CCK Law Got the Witkowski Issue Before the Court

This result was possible only because the case was deliberately developed with the potential for court review in mind.

Over the last ten years, CCK Law:

• Built the record from the start as if the case might eventually reach the Court.
• Preserved the jurisdictional and regulatory arguments long before the appeal.
• Successfully achieved a Board denial via Mr. Witkowski’s refusal to accept a remand, which opened the door to present the question of the Board’s jurisdiction over extraschedular TDIU squarely to the Court.

This reflects CCK Law’s litigation-ready philosophy, paraphrased as:

“Every time that CCK Law argues a case, a spotlight is cast on a regulation or situation that has been causing pain and frustration, often for years and for tens of thousands of veterans. The benefits of these decisions are felt not just by our clients, but by millions of America’s most vulnerable veterans and even by the employees of VA itself.”

What Witkowski Means Going Forward

Veterans who previously saw their extraschedular TDIU cases stalled under Bowling should expect a more streamlined and just process. The Board can now:

• Grant extraschedular TDIU without referral,
• Deny it on the merits, or
• Remand for additional development only when development is truly needed.

The Director of Compensation may still play a role in some cases, but only when the Board determines that development is necessary, not because a regulation forces a particular procedural path.

If any veteran is unable to work due to service-connected disabilities, encourage that veteran to contact Chisholm Chisholm & Kilpatrick for assistance. CCK Law continues to litigate complex cases at every level of VA and at the Court to advance the rights of disabled veterans nationwide.