Citation Nr: 18143331 Decision Date: 10/18/18 Archive Date: 10/18/18 DOCKET NO. 16-34 275 DATE: October 18, 2018 ORDER Entitlement to a total rating based on individual unemployability (TDIU) on a schedular basis is denied. FINDING OF FACT The Veteran does not have a service-connected disability rated as 40 percent or more with sufficient additional disabilities to bring the combined rating to 70 percent or more. CONCLUSIONS OF LAW 1. The criteria for an award of a TDIU on a schedular basis have not been met. 38 U.S.C. § § 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16(a) (2018). 2. The criteria for referral of TDIU for extraschedular consideration have been met. 38 U.S.C. § § 1155 (2012); 38 C.F.R. § 4.16 (b) (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1971 to May 1974. In his July 2016 substantive appeal, the Veteran raised claims for a reevaluation of his service-connected chronic adjustment to include mood disorder and multilevel degenerative disc disease. To date, no action has been taken on these claims. Therefore, the Board refers these raised claims to the RO for appropriate action, including initial adjudication thereof. 1. Entitlement to a total rating based on individual unemployability (TDIU) Pursuant to 38 C.F.R. § 4.16 (a), a total disability rating may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). When considering whether the Veteran’s disabilities meet this requirement, disabilities affecting a single body system will be considered as one disability. Id. Here, the Veteran is service-connected for chronic adjustment to include mood disorder at 30 percent disabling, multilevel degenerative disc disease rated as 20 percent disabling, residuals of a stroke with upper left extremity weakness rated as 20 percent disabling, left lower extremity muscle weakness associated with residuals of a stroke rated as 10 percent disabling, peripheral neuropathy associated with degenerative disc disease rated as 10 percent disabling, hypertension rated as noncompensable, and erectile dysfunction associated with hypertension rated as noncompensable. While the combined rating for his disabilities is 70 percent, he has no service-connected disability rated as 40 percent disabling or higher. 38 C.F.R. § 4.25. Therefore, Veteran does not meet the initial eligibility requirements to receive TDIU benefits for any portion of the appeal period. His service-connected disabilities, with a combined rating of 70 percent but without one service-connected disability rated as 40 percent disabling or higher, do not meet the requisite threshold including after combining disabilities that are properly considered as a single disability under the regulations. Therefore, the Veteran does not meet the percentage threshold criteria for a TDIU under 38 C.F.R. § 4.16 (a), and his claim on that basis is denied. REMANDED Entitlement to a total rating based on individual unemployability on an extra schedular basis (TDIU) is remanded. 1. Entitlement to a total rating based on individual unemployability (TDIU) on an extraschedular basis is remanded. Although the delay entailed by a remand is regrettable, Board finds further development is needed concerning the Veteran’s claim for an extraschedular TDIU. A TDIU is assigned when a veteran is unable to secure or follow a substantially gainful occupation due to service connected disabilities rated at less than 100 percent. 38 C.F.R. § 4.16 (a). These disabilities are rated as if they were 100 percent, in other words. A TDIU is assigned on a schedular basis for Veterans with one service connected disability if it is rated at 60 percent or more. Id. It is assigned on a schedular basis for a Veteran with more than one service connected disability if one is rated at 40 percent or more and the combined rating for all is 70 percent or more. Id. If a TDIU cannot be granted on a schedular basis, it may be granted on an extraschedular basis. 38 C.F.R. § 4.16 (b). Referral to the Director of the Compensation and Pension Service is required first, however, as VA cannot assign an extraschedular TDIU in the first instance. Id. As previously noted, the Veteran’s service-connected disabilities are his service-connected chronic adjustment to include mood disorder at 30 percent disabling, multilevel degenerative disc disease rated as 20 percent disabling, residuals of a stroke with upper left extremity weakness rated as 20 percent disabling, left lower extremity muscle weakness associated with residuals of a stroke rated as 10 percent disabling, peripheral neuropathy associated with degenerative disc disease rated as 10 percent disabling, hypertension rated as noncompensable, and erectile dysfunction associated with hypertension rated as noncompensable. As examined earlier, the combined rating for his disabilities does not meet the schedular requirement for a TDIU. 38 C.F.R. § 4.25. A TDIU accordingly cannot be assigned on a schedular basis. Referral to the Director of the Compensation and Pension Service for consideration of the assignment of a TDIU on an extraschedular basis has not been made. However, the Board finds that such referral is warranted. The Veteran’s currently assigned ratings are considered adequate to compensate for considerable employment impairment, as noted above, yet they do not compensate for complete employment impairment. In other words, they do not compensate the Veteran adequately if, as he asserts, residuals from his previous stroke are so severe that he is unable to secure or follow a substantially gainful occupation. In support of the Veteran’s several lay statements concerning his unemployment, Social Security Administration records reflect he stopped working as a soil conservationist for the United States Department of Agriculture in 2000, reportedly because of his stroke residuals, to include extremity weakness, neuropathy, and hypertension. Social Security Administration records also list “stroke” as one of the primary disability which prevents employment. The Board notes he is currently service-connected for several disabilities listed as residuals of stroke. In light of the aforementioned, the Board finds that the Veteran may be unable to secure or follow a substantially gainful occupation. The Board does not complete additional development, to include referral, on its own. As such, a remand to the RO to accomplish it accordingly is warranted. The matter is REMANDED for the following action: 1. Refer the issue of entitlement to a TDIU to the Director of the Compensation and Pension Service for extraschedular consideration. Place a copy of the Director’s decision in the claims file. 2. Then readjudicate the Veteran’s entitlement to a TDIU on an extraschedular basis. Issue a rating decision if the decision made is favorable to him. Issue an SSOC if it is unfavorable. Provide a copy of the rating decision or SSOC to the Veteran and his representative, and place a copy in the claims file. Allow them the requisite time period to respond to an SSOC before processing for return to the Board. THOMAS H. O'SHAY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Peden, Associate Counsel