Citation Nr: 21066879 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 10-25 258 DATE: November 2, 2021 REMANDED Entitlement total disability rating based on individual unemployability due to service-connected disabilities (TDIU), prior to July 15, 2008 is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1957 to June 1960. In October 2010, the Veteran testified before the undersigned Veterans Law Judge at a Board of Veterans' Appeals (Board) hearing. In an April 2019 decision, the Board denied this claim and the Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court). In November 2019, the Court issued an order granting an October 2019 Joint Motion for Partial Remand, remanding the claim to the Board for further action, particularly to provide an adequate statement of reasons and bases for our decision. In a May 2020 decision, the Board denied this claim and the Veteran appealed the Board's denial to the Court. In March 2021, the Court issued an order granting a February 2021 Joint Motion for Remand (JMR), remanding the claim to the Board for further action, particularly stating that both parties agree the Board erred when it found Appellant's TDIU claim was not on appeal from July 2004. The matter has again been returned to the Board. The Veteran's attorney representative has submitted evidence and argument directly to the Board in October 2021 with waiver of any applicable agency or original jurisdiction (AOJ) review. TDIU prior to July 15, 2008 is remanded. The Veteran is currently in receipt of TDIU effective July 15, 2008. The parties to the JMR have decided that this matter is on appeal from July 2004. They noted a veteran's "appeal for a higher disability rating was sufficient, when coupled with evidence of unemployability to raise the issue of entitlement to TDIU for the entire appeal period." Harper v. Wilkie, 30 Vet. App. 356, 361 (2018). They found that the Veteran's notice of disagreement for an increased rating for his epididymitis placed the issue of TDIU into appellate status from July 2004. We note there is a July 22, 2004 statement from the Veteran as to service connection for this disability, for which service connection was ultimately granted and an appeal as to the disability rating ensued. The parties also determined that the Board erred (1) in apparently considering the Veteran's age when denying TDIU; (2) when it found the Veteran's functional limitations did not preclude him from securing and following a substantially gainful occupation but did not discuss pertinent aspects of a Vocational Rehabilitation Evaluation assessment and (3) when it failed to address Appellant's educational or occupational background when considering entitlement to TDIU. In this regard, we note that 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). Where these percentage requirements are not met, entitlement to the benefits on an extra-schedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16 (b). It is not in dispute that prior to July 15, 2008, the Veteran did not meet the threshold schedular disability percentage requirement for a TDIU consideration as a result of his service-connected epididymitis, left shoulder and cervical spine disabilities. 38 C.F.R. § 4.16 (a). The Veteran was assigned a 60 percent disability rating from July 22, 2004 to July 14, 2008, with no individual disability rated higher than 30 percent, and as such, he does not meet the schedular criteria for a TDIU. Thus, the question is whether the Veteran's service-connected disabilities were sufficient to produce unemployability, such that referral for extraschedular consideration is necessary under 38 C.F.R. § 4.16 (b). As noted, the Veteran's attorney representative submitted evidence and argument to the Board in October 2021. This includes a TDIU Vocational Assessment Report from Vocational Consultant Francesco Fazzolari, M.Ed. along with this consultant's credentials. We find that this evidence supports referral for extraschedular consideration under 38 C.F.R. § 4.16 (b) for the claim for TDIU prior to June 15, 2008, and specifically from July 22, 2004. The Board acknowledges the October 2021 contention that the Board does not need to refer the issue of TDIU to the Director. The Veteran's attorney representative alleges that the language of 38 C.F.R. § 4.16 (b) stating that rating boards "should" is permissive and not mandatory. The representative also argues that the Court majority in Wages v. McDonald noted that "In sum, the Secretary's contention that § 4.16 (b) vests an extraschedular TDIU award solely within the nonreviewable discretion of the Director conflicts with the statutory mandate that the Board provide the final decisions on section 511(a) benefits determinations. Accordingly, this contention is rejected." Wages v. McDonald, 27 Vet. App. 233, 238 (U.S. 2015). Despite the attorney-representative 's familiarity with this case, the arguments provided misapply the established precedent. The Court in Wages held that the Board is not bound by the Director's decision and specifically stated that "the Board is required to obtain the Director's decision before the Board may award extraschedular TDIU" and "On its face, the regulatory scheme created by § 4.16 (b) merely withholds from rating boards the authority to grant extraschedular TDIU in the first instance." Wages, 27 Vet. App. 233. The Board also rejects the argument that referral to the Director in the first instance is not required because section 4.16 (b) uses the word "should" and is therefore permissive rather than mandatory. This is contrary to the long-standing and unambiguous precedent that the Board is prohibited from awarding extraschedular TDIU in the first instance. Id. The matter is REMANDED for the following action: Refer the Veteran's claim for an extraschedular TDIU to the Director, Compensation Service for consideration of whether the Veteran is entitled to TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16 (b) for the portion of the appeal period prior to July 15, 2008, specifically from July 22, 2004. Provide the claims file to the Director, Compensation Service. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Rippel, 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.