Citation Nr: 21064249 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 18-24 260 DATE: October 19, 2021 REMANDED Entitlement to an earlier effective date of January 29, 2009 for the grant of a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from July 1969 to April 1971 and in the United States Air Force from November 1982 to March 1983, from October 1990 to May 1991, from March 2003 to March 2004, and from November 2005 to March 2006. In January 2020, the Board issued a decision denying entitlement to an earlier effective date for the grant of TDIU. The Veteran appealed the matter to the Court of Appeals for Veterans Claims (Court), which vacated, in part, the January 2020 Board decision, pursuant to a May 2021 Joint Motion for Partial Remand (JMPR). The Court remanded the matter for action consistent with the terms of the JMPR. 1. Entitlement to an earlier effective date of January 29, 2009 for the grant of a TDIU is remanded. The Veteran contends that he is entitled to an earlier effective date for his grant of TDIU. He has currently been granted TDIU since September 3, 2015. The Veteran has submitted a Vocational Employability Assessment by N.S., a Vocational Rehabilitation Counselor. N.S. concluded that it is more likely than not that the Veteran has been unable to secure and follow a substantially gainful occupation, to include sedentary employment, since June 2009. TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the above purpose of one 40 percent disability in combination, disabilities affecting a single body system, such as the orthopedic system, constitute "one disability" in determining whether the Veteran has satisfied the schedular criteria for a TDIU. See 38 C.F.R. § 4.16(a). The Veteran had a combined disability rating of 50 percent from January 29, 2009 to November 10, 2010; 70 percent from November 10, 2010 to December 19, 2014; and 80 percent from December 19, 2014 to September 3, 2015. From January 29, 2009 to November 10, 2010, the Veteran had the following service-connected disabilities: diabetes mellitus (rated as 20 percent disabling), bilateral flat feet with heel spurs (rated as 10 percent disabling), tinnitus (rated as 10 percent disabling), hypertension (rated as 10 percent disabling), hypothyroidism (rated as 10 percent disabling), bilateral hearing loss (assigned a noncompensable rating), and tinea pedis (assigned a noncompensable rating). From November 10, 2010 to December 19, 2014, the Veteran had the following service-connected disabilities: actinic keratosis (rated as 30 percent disabling), diabetes mellitus (rated as 20 percent disabling), bilateral flat feet with heel spurs (rated as 10 percent disabling), right lower extremity radiculopathy (rated as 10 percent disabling), tinnitus (rated as 10 percent disabling), hypertension (rated as 10 percent disabling), hypothyroidism (rated as 10 percent disabling), degenerative disc disease (rated as 10 percent disabling), bilateral hearing loss (assigned a noncompensable rating), and tinea pedis (assigned a noncompensable rating). From December 19, 2014 to September 3, 2015, the Veteran had the following service-connected disabilities: actinic keratosis (rated as 30 percent disabling), post-traumatic stress disorder (PTSD) (rated as 30 percent disabling), diabetes mellitus (rated as 20 percent disabling), bilateral flat feet with heel spurs (rated as 10 percent disabling), right lower extremity radiculopathy (rated as 10 percent disabling), tinnitus (rated as 10 percent disabling), hypertension (rated as 10 percent disabling), hypothyroidism (rated as 10 percent disabling), degenerative disc disease (rated as 10 percent disabling), bilateral hearing loss (assigned a noncompensable rating), and tinea pedis (assigned a noncompensable rating). With regard to assignment of a TDIU prior to September 3, 2015, the Board notes that the Veteran did not meet the criteria for a schedular TDIU at that time. See 38 C.F.R. §§ 3.340, 3.341, 4.16. The Board acknowledges the Veteran's contention in the September 2021 Appellate Brief that the schedular criteria are met since November 10, 2010 as his orthopedic disabilities qualify as a "single disability" for the purposes of TDIU under 38 C.F.R. § 4.16(a)(3). However, when combined, the Veteran's service-connected orthopedic disabilities (bilateral flat feet with heel spurs, degenerative joint disease (DDD), and right lower extremity radiculopathy associated with DDD) do not exceed a rating of 30 percent disabling at any time prior to September 3, 2015. Therefore, during the period on appeal, the Veteran's combined rating for orthopedic disabilities do not satisfy the criteria for schedular TDIU under 38 C.F.R. § 4.16(a). Further, prior to November 10, 2010, the Veteran did not meet the schedular criteria for a TDIU based on either single or multiple disabilities, as his combined evaluation was 50 percent. As the Veteran does not meet the criteria for schedular TDIU prior to September 3, 2015, any award of TDIU prior to that date would be on an extra-schedular basis. A claim for a TDIU may be referred to Compensation and Pension Service when a veteran does not meet the percentage standards of 38 C.F.R. § 4.16(a) but is otherwise unemployable due to service-connected disabilities. 38 C.F.R. § 4.16(b). As noted above, the Veteran has submitted a Vocational Employment Assessment, in which N.S. opined that the Veteran has been unable to secure and follow a substantially gainful occupation, to include sedentary employment, since June 2009. Accordingly, remand is required for referral to the Compensation and Pension Service for extraschedular consideration. The matter is REMANDED for the following action: The Agency of Original Jurisdiction (AOJ) should refer the case to the Director of Compensation Service for consideration of extraschedular TDIU prior to September 3, 2015. A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Watkins, 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.