Citation Nr: 21062390 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 16-58 265 DATE: October 7, 2021 REMANDED The issue of entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1998 to August 1998. In October 2020, the Board of Veterans' Appeals (Board) granted an initial increased evaluation from a noncompensable level to 50 percent rating for the Veteran's service-connected migraine headaches. The Veteran appealed the Board's decision to the Court of Appeals for Veterans Claims (CAVC or Court), as it pertained to the failure of the Board to assume jurisdiction of a TDIU claim pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). Pursuant to the May 2021 Joint Motion for Partial Remand (JMPR), the Court vacated the Board's decision in this part and remanded the matter back to the Board for further development. In accordance with the directives outlined in the May 2021 JMPR, after a thorough consideration of the evidence of the record, the Board finds that referral to the Director of Compensation Service is warranted for extraschedular consideration of the assignment of a TDIU rating. In this regard, the Board notes that the Veteran is only service connected for migraine headaches, currently rated as 50 percent disabling. In the November 2016 VA Form 9, the Veteran reported experiencing concentration difficulties due to his migraine symptoms. He expressed that his migraines kept him from keeping a job and providing for himself. In the September 2016 Notice of Disagreement (NOD), he stated that he was not able to perform his job due to light, noise, smell, and balance issues. Where there is plausible evidence that a claimant seeking extraschedular TDIU is unable to secure or follow a substantially gainful occupation and where there is no affirmative evidence to the contrary, the Board is required to remand the claim for referral to the Director, Compensation Service to consider entitlement to a TDIU on an extraschedular basis. Bowling v. Principi, 15 Vet. App. 1 (2001). Therefore, referral to the Director, Compensation Service for consideration of entitlement to extraschedular TDIU is warranted. 38 C.F.R. § 4.16 (b). Accordingly, this matter is REMANDED for the following action: 1. Provide the Veteran an opportunity to complete and submit VA Forms 21-8940 (Veterans Application for Increased Compensation on Unemployability) and 21 4192 (Request for Employment Information in Connection with Claim for Disability Benefit). 2. Once all available and relevant records have been received and associated with the claims file, forward this case to the Director of Compensation Service for consideration of the assignment of a TDIU rating due to the Veteran's service-connected migraines on an extraschedular basis, pursuant to the provisions of 38 C.F.R. §§ 4.16(b). In connection with the referral, the local VA Office should include a full statement outlining the Veteran's service-connected disability (which includes only his service-connected migraines), employment history, educational attainment, and all other factors having a bearing on the issue during the applicable timeframe. 3. Then, review the record, conduct any additional development deemed necessary, and adjudicate the appeal. If the benefit sought remains denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case (SSOC). The Veteran and his representative should be afforded the appropriate time period to respond. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination, if one is scheduled, may impact the determination made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Middleton, 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.