Citation Nr: A19002065 Decision Date: 10/18/19 Archive Date: 10/18/19 DOCKET NO. 190415-8204 DATE: October 18, 2019 REMANDED Entitlement to a total rating based on individual unemployability (TDIU), to include on an extraschedular basis pursuant to 38 C.F.R. § 4.16 (b) is remanded. REASONS FOR REMAND On August 23, 2017, the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA) was signed into law. This law creates a new framework for veterans dissatisfied with VA’s decision on their claim to seek review. This decision has been written consistent with the new AMA framework. The Veteran, who is the Appellant in this case, served in the United States Navy from December 1978 to June 1985. Procedurally, this matter is before the Board of Veterans’ Appeals (Board) on appeal from a February 2019 AMA rating decision that considered the evidence of record on that date. The Veteran timely appealed this decision to the Board by requesting the AMA Direct Review lane for a reevaluation of the evidence considered by the Agency of Original Jurisdiction (AOJ). The Board notes that in the February 2019 AMA decision, the AOJ incorrectly characterized the issue on appeal as to whether there was clear and unmistakable error (CUE) in failing to consider the issue of TDIU in past rating decisions. However, there can be no basis for CUE as there was no rating decision that became final as to the TDIU issue prior to the February 2019 AMA decision. See 38 C.F.R. § 3.105 (a). Accordingly, the claim on appeal is a claim for a TDIU, not a claim based on CUE, and has therefore been recharacterized. TDIU is remanded. The Veteran contends that he is unemployable due to his service-connected deep vein thrombosis. As noted above, he is rated at 40 percent disabling. As this is his only service-connected disability, his total combined rating is 40 percent disabling. Accordingly, the Veteran does not meet the minimum schedular requirements for TDIU. See 38 C.F.R. § § 4.16 (a). Therefore, at this time the only basis for the assignment of a TDIU is on an extraschedular basis. See 38 C.F.R. § 4.16 (b). The Veteran’s VA and private treatment records show continuous complaints of consistent pain and persistent edema due to his deep vein thrombosis. Specifically, he described the pain as a constant Charley horse feeling in an April 2011 VA record. A private physician noted that the Veteran’s venous insufficiency symptoms continued to interfere with activities of daily living in July 2015. In a January 2018 VA treatment note, he was observed to have significant difficulty with fluid/vascular retention due to his deep vein thrombosis, where within minutes of waking, his right mid-calf was three inches larger in circumference as compared to his left calf at the same level. In January 2019, the Veteran was afforded a VA examination. The Veteran was noted as unemployed. The examiner opined that the Veteran’s venous insufficiency resulted in increased fatigue; and pain and weakness to lower extremities that was exacerbated with prolonged walking, standing, sitting, and weight bearing; and difficulty sitting at a desk for long periods. As a result, the examiner opined that the Veteran would be able to perform light work but only at his own pace with the ability to frequently rest, elevate his leg, and avoid prolonged immobility due to leg swelling. The examiner stated that despite being able to perform light work, ultimately, these functionally deficient symptoms of deep vein thrombosis would adversely affect the Veteran’s productivity and the ability to function at an ideal capacity in any occupation. Based on the cumulative evidence of record prior to the decision on appeal suggesting the Veteran is otherwise unable to secure and follow substantially gainful occupation due to his service-connected deep vein thrombosis, the RO should have referred this issue for extraschedular consideration. Therefore, remand for referral of extraschedular TDIU is required. The matters are REMANDED for the following action: Refer the Veteran’s claim to the Director, Compensation Service, for consideration of an extra-schedular TDIU award (38 C.F.R. § 4.16 (b)). This referral should include a full statement concerning the Veteran’s service-connected deep vein thrombosis, as well as his employment, educational, and medical histories. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § § 20.1303.