Citation Nr: 18159787 Decision Date: 12/20/18 Archive Date: 12/19/18 DOCKET NO. 11-29 652 DATE: December 20, 2018 REMANDED Entitlement to a total rating based on individual unemployability (TDIU) prior to March 20, 2017, is remanded. REASONS FOR REMAND The Veteran had active service in the United States Army from October 1968 to October 1970. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In August 2017, the Board remanded the issue for additional development. This matter has now returned to the Board for appellate consideration. The Board finds there has been substantial compliance with its prior remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). 1. Entitlement to a total rating based on individual unemployability (TDIU) is remanded. The Veteran contends that he is unable to work due to his service-connected disabilities prior to March 20, 2017. A total disability rating may be granted where the schedular rating is less than 100 percent and the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Generally, to be eligible for a TDIU, a percentage threshold must be met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In determining unemployability for VA purposes, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). The sole fact that a veteran is unemployed or has difficulty securing employment is not enough, as a high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). Entitlement to TDIU is based on an individual’s particular circumstance. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). In making a determination, the Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Prior to March 20, 2017, the Veteran was rated at 60 percent disabled. His service-connected disabilities included right shoulder dislocation at 30 percent, major depressive disorder associated with his right shoulder at 30 percent, and hilar sarcoidosis at 10 percent disabling. The Board notes that the Veteran does not meet the criteria for consideration for entitlement to TDIU on a schedular basis because the combined rating does not satisfy the percentage requirements prior to March 20, 2017. The Veteran does not have a single disability of 60 percent disabling (his major depressive disorder and right shoulder dislocation combine for a 50 percent rating), and he does not have a service-connected disability that is 40 percent or greater with a total combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). Nevertheless, the Veteran may be entitled to a TDIU on an extraschedular basis if it is established that he is unable to secure or follow substantially gainful employment as a result of the effect of his service-connected disabilities. 38 C.F.R. § 4.16(b). Therefore, if the schedular percentage threshold criteria are not met, but there is evidence of unemployability due to service-connected disabilities, the case must be submitted to the Director, Compensation Services, for extraschedular consideration of a TDIU. 38 C.F.R. § 4.16(b). Neither the RO nor the Board may assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). In this case, the Veteran asserts that his service-connected right shoulder disability has prevented him from maintaining employment. The Veteran’s records indicate that he has been unemployed since sometime in the 1970s. He has also provided a private opinion that asserts the Veteran is unemployable. Moreover, his recent VA records document that his service-connected major depressive disorder renders the Veteran unable to obtain or maintain gainful employment as he cannot complete normal workday tasks, keep a specific schedule, or interact appropriately with colleagues. As the record shows that the Veteran has largely remained unemployed, the Board finds that a referral to the Director, Compensation Services, for a determination of entitlement to an award of TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b) is warranted. The matter is REMANDED for the following actions: 1. Obtain any outstanding VA treatment records. All requests and responses for the records must be documented. If any records cannot be obtained, notify the Veteran and his attorney of the missing records, the efforts taken, and any further efforts that will be made by VA to obtain such evidence, and allow him an opportunity to provide the missing records. 2. Send appropriate notice to the Veteran regarding TDIU and complete any necessary development. This should include sending the Veteran an application form (VA Form 21-8940) and advising the Veteran of the necessity of notifying the AOJ of his updated employment history and his educational background for proper adjudication of this claim. He should be asked to specifically identify by date the period or periods during which he claims individual unemployability due to service-connected disabilities. 3. Refer the Veteran’s claim for a TDIU per § 4.16(b) to the Director, Compensation Service, for extraschedular consideration as to whether his service-connected disabilities preclude him from participating in gainful employment as needed. After completion of the above, readjudicate entitlement to a TDIU considering all relevant evidence. Thereafter, the case should be returned to the Board for appellate review. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. Morales, Associate Counsel