Citation Nr: 20021580 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 19-36 198 DATE: March 26, 2020 REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1962 to October 1966. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of February 2018 and October 2018 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2019 the Board remanded appeals for a higher initial rating for bilateral hearing loss and a higher initial rating for urinary bladder cancer. The Agency of Original Jurisdiction (AOJ) has not re-certified those issues to the Board. Therefore, the Board will not address those issues at this time. Entitlement to a total disability rating based on individual unemployability is remanded. The Veteran contends he is entitled to an award of TDIU as he has been unemployable since January 2014 due to his service-connected bilateral hearing loss, tinnitus and bladder cancer disabilities. In June 2017, the Veteran was granted service connection for his bilateral hearing loss and awarded a 30 percent evaluation from February 9, 2016, service connected for tinnitus and awarded a 10 percent evaluation effective February 9, 2016 and service connected for bladder cancer and awarded a 20 percent evaluation effective March 14, 2017. The Veteran is also service connected for erectile dysfunction at a non-compensable disability rating. His current combined disability rating is 50 percent. In the October 2018 rating decision, the RO denied a total disability rating based on individual unemployability finding that a referral to the Director of Compensation Services was not warranted because the evidence failed to show unemployability due to service-connected disabilities. Because during the entire period on appeal the Veteran’s combined disability rating for his service-connected hearing loss, tinnitus and bladder cancer has not exceeded 50 percent, the Veteran has not met the schedular criteria for entitlement to a TDIU. See 38 C.F.R. § 4.16 (a). Where a veteran’s schedular rating has been evaluated at less than 100 percent, total disability ratings for compensation may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or to follow a substantially gainful occupation as a result of one or more service-connected disabilities and without regard to advancing age or any nonservice-connected disabilities. See 38 C.F.R. §§ 3.340, 3.341(a), 4.16(a). Under 38 C.F.R. § 4.16 (a), a determination concerning unemployability must be made on the basis of service-connected disabilities alone; nonservice-connected disabilities must be disregarded. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be considered. See 38 C.F.R. § 4.16 (b). Certain percentage requirements must be satisfied in order to qualify for schedular consideration of entitlement to a TDIU. Specifically, if unemployability is the result of only one service-connected disability, this disability must be ratable at 60 percent or more. See 38 C.F.R. § 4.16 (a). If it is the result of two or more service-connected disabilities, at least one must be ratable at 40 percent or more, with the other disabilities sufficient to bring the combined rating to 70 percent or more. See id. The existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. See id. Moreover, if a veteran fails to meet the foregoing schedular percentage standards, a TDIU may still be awarded if the evidence of record establishes that the Veteran is unemployable due to service-connected disabilities. See 38 C.F.R. § 4.16 (b). In such an instance, the matter must first be referred to the Director of the Compensation and Pension Service for extraschedular consideration. See id. Although the Board is precluded from granting extra-schedular disability ratings prior to the issuance of an advisory opinion by the Under Secretary for Benefits or the Director of Compensation Services (the Director), see Bowling v. Principi, 15 Vet. App. 1, 10 (2001), the Board’s jurisdiction encompasses a de novo review of the Director’s advisory opinion as a decision adopted by the AOJ. See Wages v. McDonald, 27 Vet. App. 233, 239 (2015). In this case, the Veteran contends that his service-connected disabilities alone are of sufficient severity to produce unemployability since January 2014. See Hatlestad, 5 Vet. at 529. However, as stated above, for the entire period on appeal, the Veteran’s combined evaluation for his service-connected hearing loss, tinnitus and bladder cancer totaled at most only 50 percent, and thus the schedular requirements for an award of TDIU have not been met. See 38 C.F.R. § 4.16 (a). The Veteran’s reported employment history includes eight years of full-time employment as a church administrator ending in May 2014, followed by seven months as an IRS customer service representative ending in May 2016 and three months as a parts clerk for a waste disposal company ending that part-time employment in July 2016. He earned a general education diploma while serving in the Marines and earned an associate’s degree in business management in 2002 and a certificate in purchasing and management post-separation. In February 2019, the Veteran submitted a nexus opinion from a credentialed private vocational consultant. That consultant opined that the Veteran’s hearing loss and tinnitus precluded him from securing and following a substantially gainful occupation since at least 2016, and that his bladder cancer condition precluded substantially gainful employment since March 2017, both opinions rendered to a degree of vocational certainty. In this case, the Veteran does not meet the schedular criteria for TDIU. However, where the schedular criteria set forth in 38 C.F.R. § 4.16 (a) are not met, but a veteran is nonetheless found to be unemployable due to his service-connected disabilities, VA shall submit the case to the Director of Compensation Service for extraschedular consideration. See 38 C.F.R. § 4.16 (b). In November 2019 the Veteran’s representative submitted a brief urging that because 38 C.F.R. § 4.16(b) gives the rating board discretion to seek a Director of Compensation Service referral for extraschedular consideration and the RO elected not to do so, the Board can choose to proceed without a referral if there is no prejudice to the Veteran. The Board has no authority to award TDIU under § 4.16(b) in the first instance. See Kuppamala v. McDonald, 27 Vet. App. 447 (2015) (citing Floyd v. Brown, 9 Vet. App. 88, 94-95 (1996)). However, once the issue of entitlement to an extraschedular rating has been adjudicated by the Director, the Board has jurisdiction to review the Director's determination de novo, and therefore, where appropriate, the Board may assign an extraschedular rating in the second instance. Id. Because the evidence of record, to include the vocational consultant opinion, indicates that the Veteran’s service-connected disabilities have rendered him unemployable since at least March 2017, the Veteran’s extraschedular TDIU claim is remanded for referral to the Director of the Compensation and Pension Service. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination by an appropriate clinician to determine the impact that his service-connected disabilities, have on his functional impairment during the period on appeal. The VA electronic claims file must be made available to and reviewed by the examiner. All indicated testing should be accomplished and all symptomatology associated with these disabilities should be identified. Upon review of the record and examination of the Veteran, the clinician should describe the current impairment from each of the Veteran’s service-connected disabilities and must specifically provide an opinion as to the impact of such disabilities on the Veteran’s ability to secure or follow a substantially gainful occupation. In providing this opinion the examiner must discuss the Veteran’s education and work history and specifically address the findings of the vocational consultant with regard to employability that is negatively impacted by service-connected disabilities. The examiner must provide a complete rationale for all opinions expressed and conclusions reached. In rendering an opinion, the examiner should not consider or discuss the Veteran’s age or impact of nonservice-connected disabilities. If any requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given the medical science and the known facts, or by a deficiency in the records or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. 2. Thereafter, refer the case to the Director of VA’s Compensation Service (Director) for a determination in the first instance as to whether the assignment of a TDIU on an extraschedular basis is warranted during the period on appeal from May 2014, pursuant to 38 C.F.R. § 4.16 (b). Prior to submission of the claim to the Director, prepare a full statement as to the Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue of entitlement to a TDIU. Submit that statement, along with the Veteran’s claims file to the Director. If upon readjudication, any benefit sought is denied or is not granted in full, furnish the Veteran and his representative a supplemental statement of the case and allow sufficient time for a response. CATHERINE CYKOWSKI Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Allen M. Kerpan 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.