Citation Nr: 18140633
Decision Date: 10/03/18	Archive Date: 10/03/18

DOCKET NO. 09-06 595
DATE:	October 3, 2018
REMANDED
Entitlement to a total rating based on individual unemployability (TDIU) is remanded.
REASONS FOR REMAND
The Veteran served on active duty with the United States Navy from October 1999 to March 2007.
This appeal comes to the Board of Veterans’ Appeal (Board) as part of the Veteran’s claim for an increased rating for her headaches.  See Rice v. Shinseki, 22 Vet. App. 447 (2009). 
As to the TDIU claim, the Board most recently remanded this issue in December 2017.  In this regard, the Board notes that the August 2014 Joint Motion for Remand (JMR) addressed the claim for an increased rating for headaches and has no bearing on the current claim for a TDIU.
As to the headaches claim, the Board finds that this issue is no longer in appellate status because it was the subject of a final Board decision issued in June 2017.
Entitlement to a TDIU
The Veteran and her representative claim, in substance, that the appellant is unable to maintain substantially gainful occupation because of her service-connected migraine headaches.
In this regard, the record shows that the Veteran does not meet the schedular rating requirements for a TDIU because only two of her service0connected disabilities have compensable ratings (migraine headaches at 50 percent and tinnitus at 10 percent) and her combined disability rating is only 60 percent.  See 38 C.F.R. § 4.16(a).  
However, the Board notes that an award of a TDIU can also be granted on an extraschedular basis.  In this regard, it is the policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation because of service connected disability shall be rated totally disabled.  38 C.F.R. § 4.16(b).
Tellingly, while the claim was in remand status the agency of original jurisdiction (AOJ) in June 2018 received a VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits, from Walmart.  The VA Form 21-4192 for the first time placed Veterans' Administration (VA) on notice that the Veteran had last worked full-time (35 to 40 hours a week/7 to 8 hours a day) for Walmart on October 3, 2017, and in the last 12 months before she stopped working she lost 92 days of work because of her migraine headaches.
The Board finds that this objective evidence of the Veteran’s service-connected migraine headaches causing her to lose 4½ months of work in the 12-month period before she stopped working meets the criteria to refer the claim to the Director, Compensation Service, for extra-schedular consideration before this issue can be adjudicated in the first instance by the Board.  See 38 C.F.R. § 3.321(b)(1); Thun v. Peake, 22 Vet. App. 111 (2008).
While the appeal is in remand status any outstanding VA and private treatment records should be obtained while the appeal is in remand status.  See 38 U.S.C. § 5103A(b).
The matter is REMANDED for the following actions:
1. Obtain and associate with the claims file any outstanding VA treatment records.
2. After obtaining all needed authorizations from the Veteran, associate with the claims file any outstanding private treatment records.  
If possible, the Veteran herself should submit and new pertinent evidence the Board/VA does not have (if any).
3. Refer the claim for a TDIU to the Director, Compensation Service, for extra-schedular consideration.  
 
JOHN J. CROWLEY
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Neil T. Werner, Counsel