Citation Nr: 21062520 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 13-29 733 DATE: October 7, 2021 REMANDED Entitlement to total disability based on individual unemployability (TDIU) from June 3, 2008, but prior to January 21, 2009, on an extraschedular basis is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from August 1962 to October 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2015, the Veteran testified before the undersigned at a hearing via videoconference. A transcript of his testimony has been associated with the claims file. Unfortunately, the Veteran died in October 2018 during the pendency of his appeal. After his death, the Board dismissed the appeal without prejudice. In October 2019, however, VA recognized the Veteran's surviving spouse as a substitute claimant and the appeal was docketed in her name. In a May 2020 decision, the Board granted TDIU on a schedular basis from January 21, 2009, and remanded the claim for TDIU prior to January 21, 2009, for further evidentiary development. The matter now returns to the Board. By way of background, the Veteran testified at his December 2015 Board hearing that he had to leave his job as a bus driver because he failed the physical examination for his commercial driver's license (CDL). More specifically, he testified that he had to leave this job because of issues with his vision and numbness in his hands caused by service-connected diabetic retinopathy and peripheral neuropathy. Although he reported to health care providers in Social Security Administration (SSA) and VA treatment records that he had stopped working in June 2008, the evidence of record contained some conflicting information regarding when he was last employed. In the Board's May 2020 decision, the Board instructed the RO to take steps to verify when the Veteran's last employment as a motor coach operator ended and to obtain information from the appropriate source regarding the revocation of his CDL. More specifically, the Board directed the RO to take steps to ascertain whether the Veteran's CDL was revoked due wholly or in part to service-connected disabilities. In the event that the RO determined that his CDL was revoked due to or in part because of service-connected disabilities, the RO was to refer his case to Director of Compensation Service for adjudication of entitlement to TDIU on an extraschedular basis prior to 38 C.F.R. § 4.16(b) prior to January 21, 2009. A careful review of the claims file indicates that the RO substantially complied with the May 2020 remand directives. For instance, the RO contacted the appellant in July 2020 and requested for her to complete and return authorization forms for VA to obtain information on his CDL, as well as for her to ask the Veteran's last employer to complete and return a VA Form 21-4192, Request for Employment Information. The appellant's representative returned an authorization form, as well as a letter from the Veteran's last employer indicating that his employment records were no longer available. In October 2020, the West Virginia Division of Motor Vehicles (DMV) sent a letter indicating that the Veteran voluntarily surrendered his CDL in June 2010 and that the reason given in his voluntary surrender letter was, "Don't need CDL Retired." As such, there has been substantial compliance with the Board's May 2020 directives. Stegall v. West, 11 Vet. App. 268 (1998). The Board acknowledges that the Veteran voluntarily surrendered his CDL in June 2010, more than two years after he was reported to have stopped working as a bus driver. However, entitlement to TDIU does not necessarily hinge on why he lost his CDL; it instead hinges on whether he was unable to secure and maintain substantially gainful employment due to service-connected disabilities. To that end, although the letter from the DMV states that the Veteran was retired and did not need a CDL anymore, it did not indicate why the Veteran had retired. It is entirely possible that the Veteran had to leave his job in June 2008 because of his service-connected disabilities and also that he later voluntarily surrendered his CDL because he had not worked as a bus driver for more than two years. The Veteran's May 2008 VA treatment records indicate that he did not think he would be able to pass the physical needed to maintain his CDL. Shortly thereafter, in a June 2008 VA treatment record, he reported that he was no longer permitted to drive commercially. In a June 2008 VA Form 28-1902W, the Veteran indicated that he last worked on June 3, 2008, as a motor coach driver but had left the job because he failed a physical. He reported that he could not drive commercially because of diabetes mellitus, hypertension, retinopathy, neuropathy, hepatitis C, and other health issues. SSA records similarly indicate that he reported being laid off from his motor coach position because he could not pass a physical examination. Ultimately, regardless of the reason he no longer had a current CDL prior to his death, the record suggests that the Veteran was unable to secure or maintain employment due to his service-connected disabilities as of June 3, 2008. However, the Veteran did not satisfy the schedular requirements for entitlement to TDIU prior to January 21, 2009. Moreover, the Board does not have jurisdiction to grant TDIU on an extraschedular basis in the first instance. On remand, the claim should thus be referred to the Director of Compensation Service for consideration of TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b). Accordingly, this matter is REMANDED for the following action: Refer the case to the Director, Compensation Service for extraschedular consideration for TDIU from June 3, 2008, to January 21, 2009. Include a full statement as to the Veteran's service-connected disabilities, employment history, educational history, and all other factors having a bearing on the issue. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Rademacher, 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.