Citation Nr: 18153989 Decision Date: 11/29/18 Archive Date: 11/28/18 DOCKET NO. 14-19 822 DATE: November 29, 2018 REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) on an extraschedular basis is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1959 to August 1962 and from March 1964 to August 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In April 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the claims file. In August 2017, the Board remanded this matter for further development. That development having been completed, this matter has returned to the Board for further appellate review. Entitlement to a TDIU on an extraschedular basis is remanded. A TDIU may be assigned when a disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. The Veteran is currently service-connected for a depressive disorder, evaluated at 30 percent; chondromalacia of the right knee with degenerative arthritis, evaluated at 10 percent; chondromalacia of the left knee with degenerative arthritis and instability, evaluated at 10 percent; limitation of flexion, right knee, evaluated at 10 percent; limitation of flexion, left knee, evaluated at 10 percent; tinnitus, evaluated at 10 percent; rhinoplasty, status post deviated nasal septum, evaluated at 10 percent; extensive scarring, nose, evaluated at 10 percent; and tinea pedis, feet, and lipoma excision, each evaluated as noncompensable. See November 2014 Rating Decision. The Veteran’s combined rating is 20 percent, effective August 25, 1979; 50 percent, effective July 10, 2000; 60 percent, effective April 11, 2006; and 70 percent, effective April 9, 2014. Id. Although the Veteran’s combined disability rating is 70 percent, he does not have at least one disability rated at 40 percent or more; therefore, he does not satisfy the minimum percentage rating requirements of 38 C.F.R. § 4.16(a) for a TDIU. However, VA regulations provide that 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 of Compensation and Pension Service for extraschedular 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). See also Fanning v. Brown, 4 Vet. App. 225 (1993). Only after the Director has determined whether an extraschedular evaluation is warranted does the Board have jurisdiction to decide the merits of the extraschedular aspect of the TDIU claim or increased rating claim. Thus, given the Veteran’s testimony at the April 2017 Board hearing and his assertions, by and through his representative, as well as the recent VA examination findings, that reasonably raises the possibility that the Veteran cannot work due to his service-connected knee disabilities, tinnitus, and depression, the Board refers the Veteran’s claim to the Under Secretary for Benefits or Director of Compensation and Pension Service for an extraschedular evaluation under 38 C.F.R. § 4.16(b). The matter is REMANDED for the following action: 1. Complete any additional evidentiary development necessary to adjudicate a claim for a TDIU, to include obtaining updated VA treatment records. 2. Refer the TDIU claim to the Director, Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 4.16(b). P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. M. Stedman, Associate Counsel