Citation Nr: 21064670 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 15-00 671 DATE: October 21, 2021 REMANDED Entitlement to total disability based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1977 to June 1980. These matters come to the Board of Veterans' Appeals (Board) on appeal from August 2012 and October 2012 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In March 2021, the Board determined that the issue of a TDIU had been raised by the record and that jurisdiction under Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The claim was then remanded by the Board in March 2021 for additional development, to include providing the Veteran the opportunity to complete a Veterans Application for Increased Compensation Based on Unemployability (VA Form 21-8940). The Board notes that a completed VA Form 21-8940 is not currently of record. An April 2020 rating decision granted the Veteran's claim for service connection for degenerative arthritis of the left hip, limitation of extension of the left hip, limitation of flexion the left hip and assigned an initial rating for each disability. As this decision represents a full grant of the benefits sought with respect to these claims for service connection, such issues are no longer before the Board for consideration. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1977). 1. Entitlement to TDIU is remanded. The Veteran contends that his service-connected knee and hip disabilities render him unable to sustain gainful employment. The Veteran does not meet the criteria for consideration for entitlement to TDIU on a schedular basis as the combined rating does not satisfy the percentage requirements per 38 C.F.R. § 4.16(a). In this regard, the Veteran does not have a single disability of 60 percent disabling, and he does not have a service-connected disability that is 40 percent or greater with a total combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). The Veteran is service-connected for degenerative arthritis of the left hip, rated 10 percent disabling prior to July 27, 2021 and 20 percent thereafter; degenerative arthritis of the right and left knees, each rated 10 percent disabling; limitation of extension and limitation of flexion of the left hip, each rated noncompensable prior to July 27, 2021 and 10 percent thereafter. His combined rating was 10 percent beginning on June 7, 2011; 30 percent from October 17, 2011 to July 27, 2021 and 50 percent thereafter. 38 C.F.R. § 4.25. Nevertheless, the Veteran may be entitled to a TDIU on an extraschedular basis if it is established that he is unable to secure or follow substantially gainful employment as a result of the effect of his service-connected disabilities. 38 C.F.R. § 4.16(b). Therefore, if the schedular percentage threshold criteria are not met, but there is evidence of unemployability due to service-connected disabilities, the case must be submitted to the Director of Compensation Services for extraschedular consideration of a TDIU. 38 C.F.R. § 4.16(b). Neither the RO nor the Board may assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1, 10 (2001); Wages v. McDonald, 27 Vet. App. 233, 236 (2015). In light of the fact that the Director of the Compensation Service has not viewed this possible extraschedular situation in the first instance, the Board finds a remand is warranted to accord full due process. The Board finds there is some evidence suggesting that the Veteran may be unable to work due to his service-connected disabilities during the period on appeal. The August 2021 VA examiner noted that the Veteran's claimed left hip condition (really, bilateral hip arthritis) is significantly limiting, especially in combination with the bilateral knee arthritis. The examiner noted that the Veteran is so markedly frail and weak that he appears 20 years older than age on exam and that his substantial left hip (worse than right) weakness, fatiguability, pain, poor range of motion, slow and antalgic gait, instability, and overall poor function would probably alone prohibit meaningful occupation of any degree, including sedentary work, much less any mechanical work. As such, the Board will remand this matter for referral to the Director of the Compensation Service for consideration per 38 C.F.R. § 4.16(b). The matter is REMANDED for the following action: Refer the Veteran's request for a TDIU under 38 C.F.R. § 4.16(b) to the Director of the Compensation Service for extraschedular consideration as to whether his service-connected disabilities preclude him from securing or following gainful employment. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. M. Donahue Boushehri, 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.