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In the case of Wages v. McDonald, No. 13-2694, decided January 23, 2015, the United States Court of Appeals for Veterans Claims remanded a Veteran’s claim for a total disability rating based on individual unemployability (TDIU). Veteran filed a claim for entitlement to individual unemployment on an extraschedular basis. Pursuant to 38 C.F.R. § 4.16(b), such a claim is submitted to the Director of the Compensation and Pension Service to determine if the Veteran is entitled to individual unemployability based on extraschedular considerations.

The Board referred Veteran’s claim to the Director who denied the claim. The VA Regional Office implemented the decision of the Director denying Veteran’s entitlement TDIU in a Supplemental Statement of the Case. Veteran appealed the decision to the Board. The Board denied Veteran’s claim for TDIU relying, in part, on the decision of the Director.

Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims arguing that the Board owed no deference to the decision of the Director and that the Board should review the Director’s decision de novo (take a fresh look). The Secretary of Veterans Affairs argued that the Board does not have the power to overturn the Director’s decision regarding entitlement to TDIU based on extraschedular considerations because it is a policy decision to be made on a case-by-case basis.

The Court of Appeals for Veterans Claims agreed with the Veteran and found that the decision of the Director is a decision adopted by the Regional Office and thus subject to review by the Board. The Secretary’s contention that the Director’s decision is evidence to be reviewed solely for factual accuracy was contradicted by the regulations. In summary, Wages stands for the proposition that the Board can review a decision by the Director denying entitlement to TDIU on an extraschedular basis.

If you are a veteran who is unable to work as a result of your service connected disabilities and needs help navigating the process for securing entitlement to individual unemployability, whether on a schedular or extraschedular basis, contact one of the experienced veteran’s disability attorneys at Gardberg & Kemmerly, P.C. today at 251-343-1111 for a free case evaluation. The attorneys at Gardberg & Kemmerly, P.C. serve veterans and their families throughout the Gulf Coast, including, Alabama, Florida, Mississippi, and Louisiana.


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