Citation Nr: 21066793 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 18-33 871A DATE: November 2, 2021 REMANDED Entitlement to a rating in excess of 20 percent for left femur/knee disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to January 29, 2021 is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from April 1966 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ); a transcript is of record. The Board remanded the appeal in May 2021 to the agency of original jurisdiction (AOJ) for further development. The claim for a TDIU has been raised by the record and the Board now has jurisdiction over the issue. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). In an August 2021 rating decision, the RO awarded entitlement to a TDIU effective January 29, 2021. However, as such did not constitute a full grant of the benefit sought on appeal, the issue of entitlement to a TDIU as set forth above remains in appellate status. AB v. Brown, 6 Vet. App. 35 (1993). The appeal previously included claims of entitlement to service connection for a low back disorder. The RO granted the claim in an August 2021 rating decision. As this award represented a full grant of the benefits sought on appeal, the claim is no longer before the Board. Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). The Veteran's appeal has been advanced on the docket. 38 C.F.R. § 20.902. 1. Entitlement to a rating in excess of 20 percent for left femur/knee disability Upon review of all evidence of record, although the Board regrets the need for further delay, another remand is necessary to protect the Veteran's due process rights and ensure compliance with the Board's prior remand instructions. When the Board remands an appeal, the claimant obtains a right to compliance with its remand orders. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In this regard, pursuant to May 2021 Board's remand directives, the Veteran underwent a VA examination for his left femur/knee disability in August 2021. At that time, objective examination of the Veteran's left hip and left knee was conducted. The examiner noted a review of July 2009 left femur radiographic studies in conjunction with the examination. However, no new imaging studies were completed to assess whether an increase in the severity of the Veteran's condition occurred. Radiographic studies have not been conducted in more than 10 years. As such, the Board finds that the August 2021 examination is not full and complete to adequately evaluate the Veteran's left femur/knee disability under the former and revised rating criteria. See 38 C.F.R. § 4.71a, DC 5255, amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). Accordingly, the Board finds that a remand is needed, to obtain an addendum opinion addressing the above. Stegall, supra. 2. Entitlement to a TDIU prior to January 29, 2021 For the reasons that follow, the Board finds that additional development is needed prior to adjudication. In this regard, before January 29, 2021, the Veteran was service connected for: (1) left femur/knee disability rated 20 percent disabling from January 18, 1972; (2) low back disability rated 10 percent disabling from January 31, 2014; (3) right lower extremity radiculopathy rated at 10 percent from January 31, 2014; (4) left lower extremity radiculopathy rated at 10 percent from January 31, 2014; (5) left orchiectomy rated at 10 percent from January 18, 1972; (6) psoriasiform dermatitis rated noncompensable from January 14, 1974. The Veteran's combined evaluation prior to January 29, 2021 was 30 percent from January 18, 1972 and 50 percent from January 31, 2014. Thus, the Veteran does not meet the schedular requirements for assignment of a TDIU under 38 C.F.R. § 4.16(a). When the threshold criteria for consideration of a schedular TDIU are not met, the issue of entitlement to a TDIU may be submitted to the Director of the Compensation Service for extraschedular consideration where the Veteran is unable to secure or follow a substantially gainful occupation because of service-connected disabilities. 38 C.F.R. § 4.16 (b); Fanning v. Brown, 4 Vet. App. 22 (1993). The Board cannot assign an extraschedular rating in the first instance. Bagwell v. Brown, 9 Vet. App. 337 (1996). Here, the Board finds that a referral to the Director of VA Compensation and Pension Services is proper as the evidence of record shows that prior to January 29, 2021, the Veteran was not able to lift heavy objects or climb ladders, affecting his ability to work as a contractor doing manual labor. See August 2014 VA examination. The Board notes that the Veteran primarily worked in construction since his separation from the military. See April 2016 VA Form 21-8940. His last full-time employment was in November 2009. Id. Although the Veteran's military occupational specialty (MOS) was administrative specialist and his education includes two years of college, the evidence of record coupled with his work experience suggests that the Veteran's service-connected disabilities may have prevented him from performing sedentary (non-labor intensive) type of work prior to January 29, 2021. See April 2021 private opinion. As such, based on the evidence suggesting that prior to January 29, 2021, the Veteran may have been unable to secure and follow substantially gainful occupation due to his service-connected disabilities, a remand for referral to the Director of VA Compensation and Pension Services is required. The issue of entitlement to a TDIU is also inextricably intertwined with the issue of entitlement to a rating in excess of 20 percent for left femur/knee disability, because the outcome of this claim may have a bearing on the Veteran's employability. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). This matter is REMANDED for the following action: 1. Schedule the Veteran for a new VA examination to determine the current severity of his service-connected left femur/knee disability. X-rays must be conducted, along with any indicated examinations, tests, or studies necessary for a complete examination. 2. After completing any development and other action deemed necessary, refer this case to the Director, Compensation and Pension Service (C&P) for consideration of an extra-schedular TDIU award (38 C.F.R. § 4.16(b)) prior to January 29, 2021. 3. After readjudicating the claim of entitlement to a rating in excess of 20 percent for left femur/knee disability, readjudicate the claim of entitlement to a TDIU prior to January 29, 2021. 4. If any benefit sought on appeal remains denied, in whole or in part, a notice must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Kuzniar, 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.