Citation Nr: 18143763 Decision Date: 10/22/18 Archive Date: 10/22/18 DOCKET NO. 10-19 758 DATE: October 22, 2018 REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) prior to June 10, 2010 is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from January 1970 to August 1971. A July 2017 Board decision denied a TDIU prior to June 10, 2010. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In May 2018, the Court granted a Joint Motion for Partial Remand and remanded the claim to the Board for action consistent with the Joint Motion. TDIU The Veteran contends that prior to June 10, 2010, his service-connected heart condition, coupled with his other service-connected disabilities, affected his ability to work and caused him to retire early in 2006. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned 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 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). In this case, prior to June 2010, the Veteran’s compensable service-connected disabilities are coronary artery disease (also referred to as heart condition) as 10 percent disabling from December 2003 and 30 percent thereafter, depression rated as 50 percent disabling from January 2008, diabetes rated as 20 percent disabling from January 2006, and left ear hearing loss rated as 10 percent disabling from December 2003. (The Veteran is also service-connected for erectile dysfunction, but he has a 0 percent rating for this disability.) Although the Veteran does meet the threshold disability percentage requirements of 38 C.F.R. § 4.16(a) from January 2008, the Veteran is requesting consideration dating back to his initial effective date of service connection for coronary artery disease in December 2003, which he does not meet the threshold requirement for. However, as noted in the Joint Motion for Partial Remand, the evidence does show that prior to January 2008, the Veteran suffered two heart attacks in 2002, which he claims drastically affected his ability to work, to include the subsequent medications he was prescribed to help control his heart condition. The Board finds that this indicates that his service-connected heart condition may have resulted in unemployability prior to January 2008. The Board notes that an extraschedular total rating based on individual unemployability may be assigned in the case of a veteran who fails to meet the percentage requirements but who is unemployable by reason of service-connected disability. 38 C.F.R. § 4.16(b). If a Veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), rating boards should refer to the Director, Compensation and Pension Service for extra-schedular consideration all cases where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b); Bowling v. Principi, 15 Vet. App. (2001); Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, the Board finds that a remand is required in order to refer the claim to the Director of VA’s Compensation and Pension Service for consideration of entitlement to TDIU in accordance with 38 C.F.R. § 4.16(b). The matter is REMANDED for the following action: Refer the claim to the Director of VA’s Compensation and Pension Service for consideration of entitlement to TDIU in accordance with 38 C.F.R. § 4.16(b). The Director should consider all available medical evidence of record, to include all VA examinations and private medical records related to his service-connected heart condition. Specifically, the Director must consider the following: a) That the Veteran had heart attacks in 2002; b) That the Veteran stated he had to retire, in part, from the highway department, because his heart condition was too dangerous to allow him to do his job; c) That there were indications that the Veteran had to keep his heart condition in check with medications, had three stents, and he would get tired; d) That the Veteran had sleep issues; and e) That the Veteran had a high school education, and his occupational experience included working as a mechanic and truck driver, and having training as a welder. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Negron, Associate Counsel