Citation Nr: 18143051
Decision Date: 10/18/18	Archive Date: 10/17/18

DOCKET NO. 12-16 972
DATE:	October 18, 2018
ORDER
Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities on a schedular basis under 38 C.F.R. § 4.16(a) is denied.
REMANDED
Entitlement to a TDIU due to service connected disabilities on an extraschedular basis under 38 C.F.R. § 4.16(b) is remanded.
FINDING OF FACT
The Veteran did not have a single disability rated at 60 percent or higher, nor did he have any additional service-connected disabilities sufficient to bring the combined rating to 70 percent or more.
CONCLUSION OF LAW
The criteria for a TDIU on a schedular basis have not been met.  38 U.S.C. §§ 5103, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16(a), 4.25.
REASONS AND BASES FOR FINDING AND CONCLUSION
As a preliminary matter, the appellant is the Veteran’s surviving spouse.  In April 2014, she was substituted for the Veteran pursuant to 38 U.S.C. § 5121A. 
TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more.  For the purpose of one 60 percent disability, or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability; and disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, will be considered as one disability.  38 C.F.R. §§ 3.340, 3.341, 4.16(a).
The Board finds that the Veteran does not meet the schedular criteria for TDIU as he does not have a single service-connected disability rated at 60 percent or more, or more than one service-connected disability resulting in a combined rating of at least 70 percent.  Service connection was in effect for: PTSD as 30 percent disabling; eczema as 10 percent disabling; and urticaria as 10 percent disabling. The Veteran’s combined evaluation was 30 percent disabling from July 13, 2010 and 40 percent from July 27, 2010.  As the schedular criteria have not been met, the claim for TDIU on a schedular basis must be denied.  
REASONS FOR REMAND
When the percentage requirements for a schedular TDIU rating under 38 C.F.R. § 4.16(a) are not met, a total rating on an extra-schedular basis may nonetheless be granted in exceptional cases when a veteran is unable to secure and follow a substantially gainful occupation due to service-connected disabilities.  38 C.F.R. § 4.16(b).  Here, the Board notes that a March 2012 private opinion by Dr. Ellis indicated that the Veteran’s hives and PTSD contributed to his unemployability and an October 2010 VA examination noted that the Veteran did not get along with certain coworkers.  In light of this, the Board finds that referral is warranted.  On remand, the TDIU claim should be referred to the Director of Compensation Service for extraschedular consideration under 38 C.F.R. § 4.16(b).  
The matter is REMANDED for the following action:
Refer the Veteran’s claim for TDIU to VA’s Director of Compensation Service for extraschedular consideration.
 
K. J. ALIBRANDO
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	S. Vang, Associate Counsel