Citation Nr: 18147842
Decision Date: 11/06/18	Archive Date: 11/06/18

DOCKET NO. 00-10 220
DATE:	November 6, 2018
REMANDED
Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded.
REASONS FOR REMAND
The Veteran served on active duty in the Army from May 1968 to April 1970.  He is the recipient of a Combat Infantryman Badge among other awards.
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2009 rating decision by the Huntington, West Virginia, Regional Office (RO) of the United States Department of Veterans Affairs.  The issue of entitlement to a TDIU previously before the Board in February 2018 at which time it was remanded.  A September 2018 rating decision granted entitlement to TDIU from May 8, 2001.  As this represents a partial grant of the benefit sought, the issue of entitlement to a TDIU prior to May 8, 2001 remains on appeal. 
Entitlement to TDIU prior to May 8, 2001
The Veteran seeks entitlement to TDIU prior to May 8, 2001.  As of May 8, 2001, the Veteran has been assigned a 70 percent combined disability rating for his service-connected disabilities. 
Prior to May 8, 2001, the Veteran does not meet the schedular requirements for TDIU.  For the period from August 26, 1999 to May 8, 2001, the Veteran is service connected for a lumbar spine disability, rated as 40 percent disabling; for foot fungus, rated as 30 percent disabling; for tinnitus, rated as 10 percent disabling; and for bilateral hearing loss, rated as noncompensable.  The Veteran’s combined disability evaluation for this period is 60 percent.  Thus, the Veteran does not meet the schedular criteria for an assignment of TDIU.  
Where a claimant does not meet the schedular requirements of § 4.16(a), the Board has no authority to assign a TDIU rating under § 4.16(b) and may only refer the claim to the Director of the Compensation Service for extraschedular consideration.  Bowling v. Principi, 15 Vet. App. 1 (2001).  TDIU may be granted on an extraschedular basis if the evidence establishes that a claimant is unable to secure and follow a substantially gainful occupation because of a service-connected disability.  See 38 C.F.R. § 4.16(b) (2016).  The Board cannot grant a TDIU claim under 38 C.F.R. § 4.16(b) in the first instance, as the regulation requires that the AOJ first submit the claim to the Director of the Compensation Service for extraschedular consideration.  Bowling v. Principi, 15 Vet. App. 1, 10 (2001).
In this case, the evidence of record suggests that entitlement to TDIU on an extraschedular basis, prior to May 8, 2001, may be warranted given the Veteran’s assertion that he was not working due to his back disability and that he was receiving Social Security Administration disability benefits based on his service-connected back disability.  As indicated above, TDIU may be granted on an extraschedular basis if the evidence establishes that a claimant is unable to secure and follow a substantially gainful occupation because of a service-connected disability.  See 38 C.F.R. § 4.16(b) (2016).  Therefore, the matter of entitlement to TDIU prior to May 8, 2001, should be referred to the Director for extraschedular consideration.
The matter is REMANDED for the following action:
1. Refer the claim for entitlement to TDIU prior to May 8, 2001, to the Director of the Compensation Service for consideration of the issue of extraschedular TDIU prior to May 8, 2001, pursuant to 38 C.F.R. § 4.16(b). 
2.  Upon completion of the above, readjudicate the remanded issue.  If the benefits sought remain denied, the Veteran should be provided with a supplemental statement of the case.  The case should then be returned to the Board for appellate review if otherwise in order.  
 
 WILLIAM H. DONNELLY
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	M. M. Lunger, Associate Counsel