Citation Nr: 21066444 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 14-41 004 DATE: November 1, 2021 REMANDED Entitlement to an initial rating greater than 10 percent for right upper extremity polyneuropathy from September 17, 2012, is remanded. Entitlement to a rating greater than 20 percent for right upper extremity polyneuropathy from September 5, 2019 is remanded. Entitlement to a rating greater than 70 percent for right upper extremity polyneuropathy from November 13, 2020 is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service from November 1966 to April 1967, and from May 1968 to September 1969. He appealed a November 2013 rating decision by the Agency of Original Jurisdiction (AOJ). These matters were before the Board in August 2018, August 2020, and May 2021, and were remanded for additional development. Unfortunately, another remand is required. 1. Right upper extremity polyneuropathy There are outstanding VA treatment records. The November 2013 rating decision on appeal stated that among evidence considered by the AOJ was VA medical records dated from July 1995 through October 2013. At the time of that decision, no CAPRI records were associated with the claims file. However, in October 2014, the AOJ added VA medical records covering the periods from April 1999 to August 2010, and from February 2013 to September 2014. Excerpts of VA medical records submitted by the Veteran in May 2015 show he received VA treatment in September 2012, within the period currently on appeal. However, the records submitted by the Veteran are incomplete. Notably the September 2013 VA peripheral nerves examination report indicated that electromyography (EMG) testing was performed in August 2012, yet records corresponding to this diagnosis are not in the claims file. As these outstanding records pertain to the period on appeal and are relevant to the Veteran's appeal for higher ratings, remand is necessary to obtain them. 2. TDIU When a Veteran seeks a higher disability rating and it is coupled with evidence of unemployability, the issue of entitlement to TDIU is raised for the entire appeal period. See Harper v. Wilkie, 30 Vet. App. 356, 361 (2018). In July 2021, the AOJ requested the Veteran provide information to help substantiate that claim. To date the Veteran has not responded to that request. As the Veteran may be entitled to TDIU during the appeal period, and as the claim is being remanded for outstanding records, the Veteran should be afforded another opportunity to submit information in support of the claim. The Board notes at present the Veteran does not meet schedular requirements for TDIU prior to October 15, 2012. Governing regulations provide that all Veterans who do not meet the schedular criteria for TDIU but are otherwise unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be referred to the Director of the Compensation Service for consideration of an extraschedular TDIU rating. 38 C.F.R. § 4.16(b). The available evidence indicates that the Veteran previously worked as an elevator repairman and ceased working in the early 1990s. See November 1994 rating decision. The Board is prohibited from adjudicating extraschedular TDIU in the first instance. Wages v. McDonald, 27 Vet. App. 233, 235-39 (2015). Accordingly, remand is required to refer consideration of extraschedular TDIU to the Director of the Compensation Service. As the determination made on the Veteran's increased rating claim could change the Veteran's eligibility for schedular TDIU prior to October 15, 2012, the Board finds that in remand status, the AOJ should adjudicate the TDIU claim only after the increased rating claim has been readjudicated. If the outcome of the remanded claim does not change the Veteran's eligibility for schedular TDIU, then the AOJ should proceed with referral of the TDIU matter for extraschedular consideration. The matters are REMANDED for the following actions: 1. Obtain any outstanding VA medical records, to include records from April 2010 through February 2013. (Continued on the next page) 2. After the above has been completed, readjudicate the Veteran's increased rating claim. If the Veteran does not meet the criteria for a schedular TDIU, refer the Veteran's claim of entitlement to TDIU to the Director of the Compensation Service for extraschedular consideration. 3. Thereafter, if any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Pelican, Luke H. 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.