Citation Nr: 18154690
Decision Date: 11/30/18	Archive Date: 11/30/18

DOCKET NO. 13-22 242
DATE:	November 30, 2018
REMANDED
Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded.
REASONS FOR REMAND
The Veteran served on active duty from May 1988 to July 1988, from November 1990 to June 1991, from September 2006 to December 2007, with additional periods of Army National Guard service.
In an August 2017 decision, the Board denied the claim. The Veteran subsequently appealed the August 2017 Board decision to the United States Court of Appeals for Veterans Claims (hereinafter, the Court). In an April 2018 order, the Court granted a Joint Motion for Remand (JMR), which vacated the Board’s decision and remanded the Veteran’s appeal to the Board for action consistent with the terms of the JMR.
Entitlement to TDIU is remanded.
VA examinations and a recently submitted private vocational expert opinion reveal opinions that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. However, the Veteran’s combined disability rating is 60 percent and does not meet the minimum percentage standards for award of a TDIU. 38 C.F.R. § 4.16(a) (2017).
When such unemployability is shown and the Veteran does not meet the numeric evaluation requirements set forth in § 4.16(a), the Board must first refer the case to the Compensation Service Director for consideration of extraschedular TDIU, 38 C.F.R. § 4.16(b), prior to any grant of the benefit. See Cantrell v. Shulkin, 28 Vet. App. 382 (2017).
The Board is prohibited from assigning a TDIU on the basis of 38 C.F.R. § 4.16(b) in the first instance without ensuring that the claim was referred to VA’s Director of Compensation for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b). Bowling v. Principi, 15 Vet. App. 1 (2001).
The Board acknowledges the representative’s argument that referral of the issue of TDIU under 38 C.F.R. § 4.16(b) is unnecessary as a result of Wages v. McDonald, 27 Vet. App. 233 (2015). The Board notes however, that the Court stated the following: “[a]s to the Secretary’s argument that de novo review of the Director’s decision by the Board renders the referral process in §4.16(b) meaningless, we note that such a referral is the Secretary’s chosen procedure under § 4.16(b).” The Board points out that the regulatory procedures have not been changed; 38 C.F.R. § 4.16(b) is still in effect. 
Accordingly, consideration of entitlement to a TDIU on an extraschedular basis, is remanded for referral to the Directory of Compensation Service for consideration.
 
The matter is REMANDED for the following action:
Refer the claim of entitlement to TDIU to the Compensation Service Director for extraschedular consideration pursuant to 38 C.F.R. § 4.16(b).

 
M.E. Larkin
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Perkins, Michael