Citation Nr: 18147443 Decision Date: 11/06/18 Archive Date: 11/05/18 DOCKET NO. 18-23 015 DATE: November 6, 2018 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) prior to September 1, 2018 is granted. REMANDED Entitlement to a TDIU as of September 1, 2018 is remanded. FINDING OF FACT For the period on appeal prior to September 1, 2018, the Veteran had two service-connected disabilities of a common etiology that had a combined rating of 60 percent disabling and was unable to obtain or retain substantially gainful employment due to service-connected disabilities. CONCLUSION OF LAW With resolution of reasonable doubt in the Veteran’s favor, the criteria for entitlement to a TDIU prior to September 1, 2018 have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341(a), 4.16, 4.25 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from August 1961 to August 1963. The Board notes that issues remanded by the Board in September 2017 have not yet been returned to the Board for further appellate review, thus will not be discussed at this time. Entitlement to a TDIU prior to September 1, 2018 The Veteran has asserted that he is unable to obtain and maintain employment as a result of his service-connected disabilities. A TDIU is warranted where the combined schedular evaluation for service-connected disabilities is less than total, or 100 percent. 38 C.F.R. § 4.16 (a). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded from obtaining or maintaining any gainful employment, by reason of his or her service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Under 38 C.F.R. § 4.16(a), if there is only one such disability, it must be rated at 60 percent or more to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). Disabilities resulting from a common etiology will be considered as one disability for TDIU purposes. 38 C.F.R. § 4.16(a)(2). Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155. For the period on appeal prior to September 1, 2018, the Veteran was service-connected for residuals of an injury to the lower trunk of the right brachial plexus, rated 40 percent disabling; peripheral neuropathy, rated as 30 percent disabling; and a muscle hernia, rated as 10 percent disabling. His combined disability rating was 60 percent and each disability result from a common etiology. Therefore, for that period, the Board finds that the Veteran has met the schedular criteria for assignment of a TDIU. 38 C.F.R. § 4.16(a)(2). The Veteran reported that he was last able to work fulltime in January 2003; at which time he stopped working because of his service-connected disabilities. Prior to become unemployed, the Veteran worked as a salesperson for a grocery store. He has a high school education. A March 2012 VA examiner opined that the Veteran’s service-connected muscle hernia impacted his employability in that he was restricted to sedentary employment, as he could not walk for prolonged periods of time, in addition to being unable to climb stairs or use a foot petal. Moreover, the examiner opined that the Veteran’s peripheral neuropathy impacted his ability to work in that he was unable to apply hand pressure or lift more than 5 pounds of weight. The examiner also reported that the Veteran would be able to perform an occupation that required complex movements with his right hand, or fine motor skills. In a February 2017 VA examination report, the examiner opined that the Veteran’s peripheral neuropathy did not preclude him from obtaining and maintaining gainful sedentary type employment that did not require lifting, pushing, pulling, or carrying more than 5 pounds of weight, in addition to performing overhead activity. Moreover, the examiner indicated that the Veteran was right hand dominant and he presented with weakness and limitation. To that end, the examiner opined that the Veteran would not be able to perform an occupation that required manual labor, construction, manufacturing, complex movement, and/or fine motor skills. In a June 2017 VA examination report, the examiner reported that the Veteran’s then service-connected peripheral nerve disability caused significant effects on his ability to work. In this regard, the examiner opined that the Veteran’s brachial plexus disability precluded the Veteran from obtaining and maintaining a full-time, regularly scheduled occupation that required constant use of his arms and hands. To that end, the examiner reported that the Veteran’s right hand was productive of weakness with almost complete loss of grip and fingering strength. In light of the Veteran’s occupational background and the functional limitations resulting from his service-connected disabilities, the Board finds that, prior to September 1, 2018, he was unable to obtain and maintain substantially gainful employment. In this regard, the above-mentioned March 2012, February 2017, and June 2017 VA examination reports indicate that the Veteran’s service-connected disabilities had a significant effect on his employability. The Board acknowledges that each of the above-mentioned VA examiners reported that the Veteran was employable if certain activities were not required. However, the Board finds that given the Veteran’s background and limitations, the Veteran would not be able to secure or maintain such employment. The Board finds that the impairment caused by the Veteran’s various service-connected disabilities did in fact prevent him from securing and maintaining employment consistent with his industrial background and education. Accordingly, with resolution of reasonable doubt in his favor, the issue of entitlement to a TDIU prior to September 1, 2018 is granted. See 38 C.F.R. §§ 3.102, 4.16. REASONS FOR REMAND The Board finds that additional development is required before the remaining claim on appeal is decided. Entitlement to a TDIU as of September 1, 2018 As of September 1, 2018, the Veteran’s disability ratings with regard to his lower trunk of right brachial plexus and muscle hernia disabilities have remained the same. However, service connection for peripheral neuropathy was severed in a June 2018 rating decision, effective August 31, 2018. Thus, as of September 1, 2018, the Veteran’s combined disability rating is 50 percent. As no point during the appeal period as of September 1, 2018 has the Veteran had a single disability rated at 60 percent disabling, or a disability rated at least 40 percent disabling with a combined total of 70 percent or more. As such, the rating percentage criteria for consideration of a TDIU under 38 C.F.R. § 4.16(a) have not been not met at any point during the pendency of the appeal as of September 1, 2018. Although the Veteran does not meet the rating requirements for consideration of a TDIU on a schedular basis under 38 C.F.R. § 4.16(a), a TDIU may be granted alternatively on an extraschedular basis under § 4.16(b) if it is established that the Veteran is indeed unemployable on account of his service-connected disabilities. However, the Board is precluded from granting a TDIU on an extraschedular basis in the first instance, and must refer the matter to the Director of Compensation Service for the initial adjudication. See 38 C.F.R. § 4.16(b); Barringer v. Peake, 22 Vet. App. 242 (2008). If and only if, the Director of the Compensation Service or designee determines that an extraschedular TDIU is not warranted does the Board then have jurisdiction to decide the issue on its merits. To date, the issue of entitlement to a TDIU as of September 1, 2018 has not been considered on an extraschedular basis under 38 C.F.R. § 4.16(b). Thus, because there is evidence that the Veteran may have been unemployable during the appeal period due to service-connected disabilities, referral of the issue for entitlement to a TDIU as of September 1, 2018 to the Director of the Compensation Service is warranted. The matter is REMANDED for the following: 1. Refer the issue of entitlement to a TDIU as of September 1, 2018 to the Director of Compensation Service for consideration of an extraschedular rating pursuant to 38 C.F.R. § 4.16(b). 2. Then, readjudicate the claim. If the benefit sought on appeal remains denied, then a fully responsive SSOC should be furnished to the Veteran and his representative, and they should be afforded a reasonable opportunity for response. T. Blake Carter Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. O’Donnell, Associate Counsel