Citation Nr: 21061461 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 10-32 479 DATE: October 4, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1973 to April 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the April 2009 and September 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2012, the Veteran appeared and testified at a Travel Board hearing before a Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the file. In January 2017, the Veteran was offered a hearing with a VLJ who would decide the appeal, but the Veteran declined. In a January 2013 decision, the Board remanded the claims for entitlement to service connection for hypertension and entitlement to an initial compensable rating for a bilateral hearing loss disability. Additionally, the Board determined, pursuant to Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009), that TDIU was reasonable raised by the record as part of a claim for an increased rating and remanded it for further development. An April 2016 rating decision denied entitlement to a TDIU. In September 2017, the Board denied service connection for hypertension and an initial compensable rating for a bilateral hearing loss disability. The Board also remanded the TDIU issue for further development. In April 2018, the Board again denied entitlement to a TDIU. The Veteran appealed the September 2017 Board decision that denied service connection for hypertension and entitlement to an initial compensable rating for a bilateral hearing loss disability to the United States Court of Appeals for Veterans Claims (Court). In September 2018, the Court granted an August 2018 Joint Motion for Remand (JMR) that partially vacated the Board's September 2017 decision and remanded in for further action. The Veteran also appealed the April 2018 Board decision that denied entitlement to a TDIU to the Court. In January 2019, the Court granted a December 2018 JMR that vacated the Board's April 2018 decision and remanded it for further action. In September 2019, the Board remanded the claims to the RO for further development in accordance with the September 2018 and January 2019 JMRs. In December 2020, the Board denied entitlement to a compensable rating for bilateral hearing loss and remanded the claim for service connection for hypertension and the claim for a TDIU. In a July 2021 rating decision, the RO granted service connection for hypertension. This constitutes a full grant of the benefits sought with that claim. Thus, the claim for service connection for hypertension is no longer in appellate status before the Board. Regarding the issue at bar, in its April 2018 decision, the Board determined that a referral for extraschedular consideration was not warranted and denied the claim because the Veteran did not meet the schedular criteria for entitlement to a TDIU. As noted above, the decision was vacated by a JMR. Controlling laws provide that a TDIU may be assigned when a veteran has one service-connected disability rated at 60 percent or more, or two or more service-connected disabilities where at least one disability is rated at 40 percent or more and the combined rating is at least 70 percent. 38 C.F.R. § 4.16(a). Here, the Veteran is service connected for mood disorder, with anxiety and depression associated with bilateral hearing loss, rated at 50 percent; and iatrogenic hypospadias, bilateral hearing loss, and hypertension, all rated as noncompensable. Therefore, the schedular criteria for a TDIU are not met. Nevertheless, under Roberson v. Principi, 251 F.3d 1378 (2001) and Rice v. Shinseki, 22 Vet. App. 447 (2009), there is a duty imposed on VA to consider TDIU even when the schedular criteria are not met. VA policy is that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). The Board does not have the authority to grant an extraschedular TDIU in the first instance; rather, the Board must refer the claim to the Director of Compensation for an extra schedular determination. Specifically, the Court in Ray v. Wilkie, discussed whether a referral for extraschedular TDIU is warranted given the Veteran's occupation. The Court defined the term "unable to secure and follow a substantially gainful occupation" to have two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of the Veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. See Ray v. Wilkie, 31 Vet. App. 58, 72-73 (2019). Here, the Veteran has maintained he was last employed in 2011 and remains unemployed. See May 2012 Social Work Consultation. In addition, the June 2009 VA hearing loss compensation examination found the effect on the Veteran's usual occupation was difficulty in hearing conversations with background noise present. The January 2015 VA mental health compensation examination noted reduced reliability and productivity in social, occupational, and family capabilities secondary to depressed mood and anxiety associated with health care concerns. Moreover, a June 2021 VA mental health compensation examination found mild impairment of interpersonal relatedness, moderate impairment in focus and concentration, and mild impairment in motivation and drive. Accordingly, referral for extraschedular consideration is warranted. In addition, as a VA Form 21-8940, Application for Increased Compensation Based on Unemployability, is not of record, the RO should request a completed form from the Veteran. The matters are REMANDED for the following action: 1. Ask the Veteran to fully and accurately complete a VA Form 21-8940, Application for Increased Compensation Based on Unemployability and send it to the RO upon completion. 2. Only after completion of #1, but regardless if the form is received within the allotted time period, refer the Veteran's TDIU claim to the Director of Compensation Service or designee for consideration of whether an extraschedular rating is warranted. 2. Thereafter, readjudicate the remanded claim. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Moldawer, Associate Counsel 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.