TDIU based on Extraschedular Considerations and the Role of the Director

Wages v. McDonald, Opinion Number 13-2694, was decided January 23, 2015 and involves a claim for TDIU based on extraschedular considerations.

Such a claim is submitted to the Director of the Compensation and Pension Service pursuant to 38 CFR 4.16(b) for determination of entitlement to TDIU. 

In this case, the issue was referred to and denied by the Director.  The Board reviewed the Director’s determination and concluded that based on multiple VA examinations, a private opinion, and the opinion of the Director, that Mr. Wages was not precluded from sedentary employment.

The veteran appealed claiming the Board erred in treating the Director’s opinion as evidence and for providing inadequate reasons and basis for the Board’s opinion for finding he was capable of sedentary work without explaining his vocational and education experience.  The veteran argued the Board owed no deference to the Director’s decision and should review it de novo.

The Secretary took the position that the Director’s decision was not evidence, but that the Board does not have the authority to overturn the Director’s decision on TDIU determinations.   The Court rejected the Secretary’s argument and found the Board has a statutory mandate to render the final decision for the Secretary on all questions arising under 38 USC 511(a).  The Court noted the Secretary’s argument that the Director’s determination was a policy decision rather than claim decision and rejected it and noted instead the Secretary’s regulation mandates that all veterans who are unemployable due to service connected disabilities shall be rated totally disabled regardless of the scheduler rating.  See 38 C.F.R. 4.16.

This is an important decision in that it now allows the Board to review a TDIU decision by the Director.  I would note that C.J. Kasold wrote concurring and stating he would have found that the Veterans Court decision prohibiting an award of extraschedular TDIU in the first instance by the Board was wrongly decided. 

Decision by J. Moorman and Pietsch with C.J. Kasold concurring.