Citation Nr: 21062192 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 16-29 863 DATE: October 6, 2021 REMANDED The claim for a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service from December 1980 to December 1984. The Veteran contended that he was not able to work due to his service-connected right knee disabilities. A TDIU may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of the Board, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, this shall be ratable at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent disability or more. 38C.F.R. §4.16(a). The Veteran is currently rated at 30 percent for limitation of extension in the right knee, 20 percent for instability of the right knee, and 10 percent for tinnitus, with a combined rating of 50 percent. Accordingly, he does not meet the schedular rating criteria for TDIU. In December 2020, the Board remanded the TDIU claim for extraschedular consideration by the Director of Compensation Service. In April 2021, the Director of Compensation Service issued an advisory opinion denying TDIU claim on extraschedular basis. The Agency of Original Jurisdiction (AOJ) subsequently issued a Supplemental Statement of the Case (SSOC) in April 2021 denying TDIU claim. After the issuance of SSOC, the Veteran provided lay statements, email exchange between the Veteran and his VA doctors regarding his new treatment/surgery, and private medical records. The email exchange and the private medical records are not legible. In August 2021, the Board sent a letter to the Veteran asking for a legible copy of the email exchange and advising the Veteran that if he would like to waive the AOJ review of the new evidence submitted after the April 2021 SSOC, he should do so within 45 days from the date of the letter, otherwise the Board will remand the appeal for AOJ review. Additionally, the Veteran reported that he recently underwent a right knee surgery in September 2021 (see 9/30/2021 document entitled "Report of General Information"), however, the surgery records are not associated with the file. As of the date of this decision, the VA has not received a waiver from the Veteran. Therefore, the matter is REMANDED for the following actions: 1. Obtain a legible copy from the Veteran of (a) the email exchange between the Veteran and his VA doctors (see 5/27/2021 document entitled "Medical Treatment Record-Government Facility") and (b) private medical records (see 8/9/2021 document entitled "Medical Treatment Record-Non-Government Facility"). 2. Obtain medical records relating to the Veteran's recent right knee surgery in September 2021. (Continued on the next page) 3. Adjudicate the TDIU claim. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Wang, 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.