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CAVC Decision · Apr 23, 2026 · Chris Combs · 14 min
The CAVC's en banc decision in Witkowski v. Collins didn't just overrule a 24-year-old precedent. It retroactively dismantled the reasoning behind thousands of Board denials -- and under Harper v. Virginia Department of Taxation, that reasoning should apply to every pending case still in the pipeline.
For nearly a quarter century, if a veteran asked the Board of Veterans' Appeals to grant total disability based on individual unemployability (TDIU) on an extra-schedular basis -- that is, a TDIU where the veteran's combined ratings fell below the 60% / 70% thresholds in 38 C.F.R. § 4.16(a) -- the Board's answer was a variation on the same theme: it could not address the issue in the first instance, and the case had to be remanded to the Director of Compensation Service for extra-schedular consideration.
That reasoning, or something very close to it, appears in an enormous volume of Board decisions. It rested on a single precedent: Bowling v. Principi, 15 Vet.App. 1, 10 (2001), which held that the Board 'has no power' to grant extra-schedular TDIU without a prior decision from the Director.
On October 21, 2025, the full Court of Appeals for Veterans Claims buried that rule.
In Witkowski v. Collins, No. 24-640 (Vet. App. Oct. 21, 2025) (en banc), the CAVC, in an opinion authored by Judge Falvey and joined by a nine-judge panel, vacated a Board decision that had denied TDIU prior to June 17, 2021, on an extra-schedular basis. The Board had denied the claim solely because the veteran's attorneys at Chisholm Chisholm & Kilpatrick had waived referral to the Director -- a strategy that forced the Board to either grant the claim directly or confess it was powerless to do so under Bowling. The Board chose the second option. The Court said it should never have been forced to choose at all.
The panel opinion grounded the reversal in two independent holdings:
First, Bowling's instruction that the Board lacks 'power' to adjudicate extra-schedular TDIU gave the referral requirement in § 4.16(b) jurisdictional effect. That is no longer permissible. Beginning with Union Pacific Railroad Co. v. Brotherhood of Locomotive Engineers, 558 U.S. 67 (2009), and running through Hamer v. Neighborhood Housing Services of Chicago, 583 U.S. 17 (2017), and Riley v. Bondi, 145 S. Ct. 2190 (2025), the Supreme Court has repeatedly held that only Congress -- not a regulation, not an agency's reading of a regulation -- can contract an adjudicatory body's jurisdiction. Section 7104(a) of title 38 vests the Board with authority over 'all questions in a matter' on appeal from the agency of original jurisdiction. Extra-schedular TDIU is such a question. A regulation cannot say otherwise.
Second, the Court held that Bowling misread § 4.16(b). The regulation directs 'rating boards' to refer qualifying cases to the Director. The Board of Veterans' Appeals is not, and has never been, a 'rating board' in VA's technical vocabulary. Rating boards were the three-member panels inside regional offices that issued initial rating decisions; the Board of Veterans' Appeals is a national appellate tribunal. The Witkowski Court walked through the history -- from pre-1988 regulations that differentiated 'rating boards' from the central appellate board, through General Counsel opinions that did the same -- and concluded that the Bowling court had simply assumed the BVA was a 'rating board' without analysis. That assumption was wrong when Bowling was decided, and it has been wrong ever since.
Judges Meredith and Bartley concurred in the result and in the first holding but dissented from the second, viewing the regulatory reinterpretation as unnecessary and advisory. They would have resolved the case on the narrower ground that § 4.16(b)'s referral requirement, read as a claim-processing rule, cannot be made non-waivable without violating Kontrick v. Ryan, 540 U.S. 443 (2004), and its progeny. Either way, the outcome is the same: Bowling's mandatory referral rule is finished.
The practical force of Witkowski does not stop at the parties to that case. It extends, by operation of a doctrine the Supreme Court announced in Harper v. Virginia Department of Taxation, 509 U.S. 86 (1993), to every case still in the pipeline.
Harper stands for the proposition that judicial decisions apply retrospectively. When a court announces what a statute or regulation means, it proclaims what the statute or regulation has always meant. The Federal Circuit has applied this principle in the veterans context for decades: when a court announces a statute's meaning, it describes what the statute has meant since enactment. See, e.g., Halpern v. Principi, 384 F.3d 1297, 1302 (Fed. Cir. 2004). The CAVC applies it as a matter of course. See Threatt v. McDonald, 28 Vet.App. 56, 63 (2016); Ravin v. Wilkie, 31 Vet.App. 104, 115 (2019) (en banc).
The Witkowski majority made the point explicitly. On page 19 of the slip opinion, the Court warned that anything less than a full remand would defy the Court's longstanding retroactivity principle and would injure the reasonable expectations of claimants before the Court.
That is not dicta. It is the governing rule for every pending case.
The strongest signal since Witkowski is not the opinion itself but what the Board has done with it. Between November 2025 and April 2026, the Board of Veterans' Appeals has cited Witkowski v. Collins in more than 200 decisions, and four application patterns have emerged clearly.
The Board is reclaiming previously-remanded cases. In a November 2025 decision, the Board had remanded an extra-schedular TDIU question to the Director in April 2025 under the old Bowling framework. Following Witkowski, the Board took the matter back and adjudicated it in the first instance -- effectively reversing its own Bowling-era remand mid-flight. That is not an isolated event; the same pattern appears across multiple post-Witkowski decisions that confront earlier Bowling-based remands still in the pipeline.
The Board is granting extra-schedular TDIU on the merits with substantial retroactive effect -- and this is where the story gets real. In a November 13, 2025 decision, the Board granted TDIU effective September 1, 2012, unlocking approximately thirteen years of retroactive benefits. In that same case, the Director of Compensation Service had actually issued an advisory opinion denying extra-schedular TDIU only six months earlier, in May 2025. The Board treated that advisory opinion as superseded, noted that Director advisory opinions are no longer required, and granted on the merits. Similar grants with retroactive effective dates reaching back to 2011, 2012, and 2016 have followed throughout November and December 2025.
These are not theoretical remand candidates. They are actual checks being written.
The Board is treating Joint Motions for Remand built on Bowling as superseded. In at least one post-Witkowski decision, a JMR instructing the Board to consider referral to the Director under § 4.16(b) was set aside on the ground that the JMR pre-dated the new precedent. Any pending JMR that contemplates Director referral under the old framework is now on shaky footing, and parties should consider whether to revise or withdraw them.
The Board is reading Witkowski broadly. Multiple decisions now treat the schedular versus extra-schedular distinction as procedurally irrelevant for TDIU merits adjudication. The practical effect is that the Board evaluates only whether service-connected disabilities prevent substantially gainful employment, without separately analyzing whether the claimant meets the percentage thresholds in § 4.16(a). That is a more expansive read than the opinion strictly requires, but it is the direction the Board has taken.
One nuance worth tracking. A small number of post-Witkowski decisions have preserved a path for claimants who affirmatively want Director review -- noting, for example, that the veteran and representative did not waive first-instance Director consideration. The rule is best understood as permissive, not prohibitive: the Board may decide extra-schedular TDIU in the first instance, but it is not required to in every case, and claimants who prefer the Director's parallel adjudication retain that option by declining to waive it.
The bottom line is that the 'pending appeals are remand candidates' argument is no longer theoretical. Veterans are already receiving retroactive TDIU grants with years -- in at least one case, more than a decade -- of back pay on the strength of Witkowski alone. The window to act is open now.
If you are a veteran or advocate with a case in any of the following postures, Witkowski is directly actionable.
These cases are squarely within Witkowski's reasoning. A post-Witkowski Board decision cannot deny extra-schedular TDIU on the ground that the Director has not yet weighed in, because that ground no longer exists. If your case is sitting at the Board right now awaiting a decision, the Board is obligated to apply current law. Counsel should consider filing a notice identifying Witkowski and requesting adjudication on the merits, with or without remand to the Director.
These are the strongest remand candidates. The Board's reasoning in these cases is now legally erroneous on its face. The Secretary himself joined the call to overrule Bowling in the Witkowski briefing, which substantially narrows any contest over vacatur. Joint motions for remand should be straightforward to negotiate.
Under 38 C.F.R. § 3.2500(h), filing a supplemental claim within one year of a prior decision preserves the effective date of the initial claim. If the Board denied extra-schedular TDIU within the past twelve months on the ground that it could not act without Director referral, a supplemental claim submitting Witkowski as new and relevant evidence -- or, more precisely, new and relevant law -- is a vehicle for readjudication without losing accrued retroactive benefits. A CAVC appeal is the alternative vehicle for claimants within the 120-day notice-of-appeal window.
Claimants whose Board denials have gone final and who are outside the one-year window face a harder problem. Harper retroactivity governs cases still in the adjudicative pipeline; it does not, by itself, reopen finally adjudicated decisions.
But the clear-and-unmistakable-error framework of 38 C.F.R. § 3.105 may provide an avenue for the narrow subset of cases where the Board's reliance on Bowling produced a manifest legal error on the face of the record. This is a harder argument and requires case-specific evaluation, but it is not a closed door.
It is worth being precise about what the decision does not accomplish, because overclaiming helps no one.
Witkowski does not mean that every veteran denied extra-schedular TDIU is now entitled to a grant. The Board, on remand or in the first instance, still must decide the merits. The veteran must still show that service-connected disabilities -- not age, not non-service-connected conditions -- render him or her unable to secure or follow a substantially gainful occupation. The evidentiary standard is unchanged. What has changed is the procedural path, not the substantive bar.
Witkowski does not abolish the Director's role. The opinion explicitly preserves the Board's authority to remand extra-schedular TDIU cases to the Director under 38 C.F.R. § 20.802 where remand is otherwise warranted. The Court expressly reserved the question of when such a remand is required. What the Board may no longer do is refuse to decide the case on the ground that the Director has not yet spoken.
Witkowski does not affect schedular TDIU claims. A veteran who meets the thresholds in § 4.16(a) was never subject to the Bowling rule in the first place. The decision affects only the subset of cases in which the veteran seeks TDIU on the basis that service-connected disabilities render gainful employment impossible despite combined ratings falling below the § 4.16(a) percentage requirements.
For advocates, Witkowski quietly rewards a posture that used to look risky. The Chisholm team's decision to waive Director referral and demand a Board merits decision -- the very strategy that produced the adverse Board ruling at issue in the appeal -- is now vindicated. In a post-Witkowski world, that same waiver produces either a direct Board grant or a legally erroneous denial that can be vacated on appeal. The downside case has collapsed.
For the Secretary, the decision eliminates a procedural step that the Office of General Counsel has been telling the Court for years is redundant. Both parties in Witkowski asked the Court to overrule Bowling. This is one of those rare moments in veterans law where the bench, the bar, and the agency have converged on the same answer.
For veterans, the takeaway is simpler. If you are pursuing extra-schedular TDIU and your case was denied on the ground that the Board 'could not' decide it, that ground is gone. The procedural detour that has added years to appeals of this kind has been closed.
Bowling v. Principi, 15 Vet.App. 1 (2001), is no longer good law. The Board of Veterans' Appeals may decide extra-schedular TDIU in the first instance. Under Harper v. Virginia Department of Taxation, 509 U.S. 86 (1993), and the CAVC's own retroactivity jurisprudence, that rule applies to every pending appeal in which Bowling was the basis for denial.
If you have a case that fits this description, do not wait for VA to act on its own. The one-year window under § 3.2500(h) is short, and the strongest remand candidates are the ones identified and raised now.
V2V Intelligence tracks changes in BVA and CAVC case law and their downstream effects on pending appeals. For questions about how Witkowski v. Collins applies to a specific claim, contact us at ai@vaclaims.net.