Citation Nr: 21064361 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 16-06 966 DATE: October 19, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to October 26, 2016 is denied. REASONS FOR REMAND The Veteran served on active duty from September 1967 to October 1978, to include service in Vietnam. His decorations include the Combat Infantryman Badge and the Purple Heart. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the issue on appeal as inextricably intertwined with other issues being remanded in May 2021. The development as to the other issues having been completed, the directives have been substantially complied with and the matter is again properly before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). As noted in the prior remand, in a September 2020 rating decision, a TDIU was granted effective October 26, 2016. Thus, the matter of entitlement to a TDIU for the period prior to October 26, 2016 remains on appeal. In May 2021 the Board also remanded the issues of entitlement to compensation for a left hip disability under 38 U.S.C. § 1151, entitlement to service connection for sleep apnea, and entitlement to service connection for headaches. While in remand, and prior to recertification of those issues to the Board, in July 2021 the Veteran in written correspondence stated that he wished to withdraw his appeals of those issues. 38 C.F.R. § 19.55. As such, those issues are no longer part of the current appeal before the Board. Id. 1. Entitlement to a TDIU prior to October 26, 2016. A TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) 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). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran's background including his or her employment and educational history. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular total disability rating based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In this case, prior to October 26, 2016 the Veteran was service connected for left hand neuropathy at 20 percent, type II diabetes mellitus at 20 percent, left lower extremity radiculopathy at 20 percent, degenerative arthritis of the lumbar spine at 10 percent, tinnitus at 10 percent, and residuals of a left foot gunshot wound, pseudofolliculitis barbae, and right ear hearing loss all rated at a noncompensable level. Thus, prior to October 26, 2016, the Veteran did not at any point meet the schedular criteria for a TDIU. However, as noted the Board must ultimately still consider whether entitlement to a TDIU is warranted on an extraschedular basis. In this case, the Veteran submitted private opinions in April 2019 and March 2021 indicating that the Veteran's service-connected disabilities prior to October 26, 2016 rendered him unemployable. Further, an August 2019 VA opinion noted that the Veteran's left hand neuropathy would result in some significant limitations on medium or strenuous work as well as the Veteran's ability to perform tasks requiring fine finger manipulation or repetitive typing. In light of the evidence above, the Board finds that a remand is necessary so that the claim may be referred to the Director, Compensation Service, for extraschedular consideration. 38 C.F.R. § 4.16(b); see Bowling, 15 Vet. App. 1. The matters are REMANDED for the following action: 1. Forward the Veteran's claim to the Director, Compensation Service, for consideration of the assignment of an extraschedular rating for a total disability rating based upon individual unemployability due to service-connected disabilities under 38 C.F.R. § 4.16(b) prior to October 26, 2016. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Wendell, 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.