Citation Nr: 21070834 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 14-17 954 DATE: November 26, 2021 REMANDED Entitlement to a total disability rating based upon individual unemployability (TDIU), to include on an extraschedular basis, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1961 to August 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) (hereinafter agency of original jurisdiction or AOJ). A June 2021 Board decision found that the issue of entitlement to a TDIU was raised by the record. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Veteran's claim for a TDIU was remanded. Following adjudication of the claim and a September 2021 supplemental statement of the case, the claim for entitlement to a TDIU has been returned to the Board for further adjudication. This case has been advanced on the docket pursuant to 38 C.F.R. § 20.900. 1. Entitlement to a TDIU, to include on an extraschedular basis, is remanded. Total disability ratings for compensation based on individual unemployability 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 extraschedular 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). Presently, the Veteran is service-connected for bilateral sensorineural hearing loss, rated 20 percent disabling; and tinnitus, rated 10 percent disabling. The Veteran's combined rating score is 30 percent, effective November 6, 2017. Thus, the Veteran does not meet the schedular criteria for consideration of a TDIU rating. If the Veteran fails to meet the threshold minimum percentage standards enunciated in 38 C.F.R. § 4.16(a), rating boards should refer to the Director of Compensation Service for extraschedular consideration all cases where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b). The Board cannot assign an extraschedular evaluation in the first instance under § 4.16(b). Nevertheless, the Board may adjudicate whether a referral to the Director, Compensation Service is warranted when the issue is either raised by the claimant or is reasonably raised by the evidence of record. See Thun v. Peake, 22 Vet. App. 111, 115 (2008); Barringer v. Peake, 22 Vet. App. 242 (2008). Once a referral for an extraschedular TDIU rating under § 4.16(b) is made by the Board, the Director of Compensation Service then determines whether an extraschedular TDIU evaluation under § 4.16(b) is warranted. At that juncture, only then does the Board have jurisdiction to decide the TDIU claim on the merits when it returns. In fact, the Court has specifically held that, although the Board is precluded from initially assigning an extraschedular rating on its own, there is no restriction on the Board's ability to review the adjudication of an extraschedular rating under § 4.16(b) or § 3.321(b)(1), once the Director of Compensation and Pension determines that an extraschedular rating is not warranted. Anderson v. Shinseki, 22 Vet. App. 423, 427-28 (2009). Accordingly, the Board must make the initial determination as to whether referral to the Director of Compensation Service is appropriate for an extraschedular evaluation under § 4.16(b). The standard of review for referring a TDIU claim for Director of Compensation and Pension review is whether there is sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his/her service-connected disabilities. Ray v. Wilkie, 31 Vet. App. 58, 65-66 (2019). In particular, the Veteran has indicated that his last date of full-time employment is December 2004, and he became too disabled to work on November 6, 2017. See August 2021 TDIU Application. In addition, the Veteran reported that due to his hearing loss he is unable to communicate with customers and coworkers. And most jobs available to someone the Veteran's age involve being able to effectively communicate. Further, the Veteran reported he has difficulty hearing normal conversational speech, in noisy settings, telephones, television, and female voices. Also, during a November 2017 VA examination, the examiner noted that the Veteran's hearing loss could cause problems depending on the vocation, and the Veteran may have trouble working well in very noisy environments. This evidence meets the low standard for referring the claim to the Director of Compensation Service to determine if an extraschedular rating is warranted for a TDIU under 38 C.F.R. § 4.16(b). The matters are REMANDED for the following action: 1. Associate with the claims folder updated VA treatment records. 2. Refer the Veteran's claim for TDIU per § 4.16(b) to the Director, Compensation Service, for extraschedular consideration as to whether his service-connected disabilities preclude him from participating in gainful employment consistent with educational and occupational background. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Patrick C. Brady, 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.