Citation Nr: 21063968 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 09-41 998 DATE: October 18, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) prior to August 22, 2018 is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from August 1960 to October 1963 and from November 1963 to October 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board denied the Veteran's claim in a November 2019 decision. The Veteran then appealed to the United States Court of Appeals for Veteran's Claims (Court), and in November 2020 the Court vacated the part of the November 2019 Board decision, granted a joint motion for partial remand (JMPR), and returned the case to the Board for action consistent with the joint motion for remand. Specifically, the parties to the JMPR did not challenge the portion of the Board's November 2019 decision wherein it denied the Veteran's increased rating claims for his lumbar spine and lower extremity radiculopathy disabilities and requested that the Court dismiss the appeal as to those claims. See Pederson v. McDonald, 27 Vet. App. 276, 285 (2015) (en banc). Thus, the only issue currently before the Board for appellate consideration is the Veteran's entitlement to a TDIU for the period prior to August 22, 2018. Remand The Veteran has alleged that he is entitled to a TDIU for the period prior to August 22, 2018, on appeal. See September 2021 Appellant's Brief. A TDIU rating may be awarded when certain schedular rating criteria are met, under 38 C.F.R. § 4.16(a), when a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disorders; and that "substantially gainful employment" is employment that is not "marginal" with "marginal" defined as employment producing an annual income below the Federal poverty threshold for one person. See Ortiz-Valles, 28 Vet. App. 65, 71 (2016) (noting that "substantially gainful employment" is employment "capable of producing income that is more than marginal, with income that exceeds the amount published by the U.S. Department of Commerce for the poverty threshold for one person" and that the regulation uses the phrases "substantially gainful employment" and "substantially gainful occupation" which are synonymous). The Court recently rendered a precedential decision in Ray v. Wilkie, 31 Vet. App. 58 (2016). Therein the Court interpreted the meaning of being "unable to secure and follow substantially gainful employment." The Court stated that: "[W]e interpret the phrase "unable to secure and follow a substantially gainful occupation" in [38 C.F.R.] § 4.16(b) to have two components: one economic and one noneconomic. The economic component simply 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. As for the noneconomic component, the Secretary himself states that 'determining eligibility for TDIU requires more than determining the presence or absence of employment producing income exceeding any particular threshold,' and 'the ultimate inquiry is instead on the individual claimant's ability to secure or follow that type of employment'." In Ray v. Wilkie, supra, the Court also provided guidance as to the meaning of a veteran's ability to "secure and follow" such employment with respect to the noneconomic component, stating that consideration was to be given to certain nonexclusive list of factors which may be addressed when the evidence raises any particular factor. Those factors are: (1) the veteran's history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue, with possibly relevant factors including, but not limited to, the limitations, if any, concerning memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity. Given the Court's recent finding in Ray v. Wilkie, and the evidence of record, the Board finds that referral to the Director of Compensation Service, for consideration of entitlement to an extraschedular TDIU rating for the period prior to August 22, 2018, is appropriate. 38 C.F.R. § 4.16(b). A remand is required for the RO to refer the Veteran's claim for an extraschedular TDIU rating to the Director of Compensation Service. The matters are REMANDED for the following action: Refer the Veteran's claim seeking entitlement to a TDIU for the period on appeal prior to August 22, 2018, to VA's Director, Compensation Service, for extraschedular consideration in light of the Court's definition of "unable to secure and follow substantially gainful employment" pronounced in Ray v. Wilkie, supra. A copy of the Director's decision on this claim must be included in the Veteran's electronic claims file. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Gresham 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.