Citation Nr: A21017597 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 190904-29227 DATE: November 1, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) on an extraschedular basis prior to January 20, 2017, is remanded. REASONS FOR REMAND The Veteran had active military service from September 1963 to August 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2019 rating decision by the Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA) which, in pertinent part, granted entitlement to a TDIU, effective January 20, 2017. In the September 2019 VA Form 10182, Decision Review Request: Board Appeal, the Veteran, in pertinent part, appealed the effective date assigned for the TDIU and elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. The Board, in pertinent part, denied the Veteran's claim for entitlement to a TDIU prior to January 20, 2017 in January 2020 and April 2021. The Veteran appealed both decisions to the U.S. Court of Appeals for Veterans Claims (Court). In an October 2020 Joint Motion for Partial Remand (JMPR), the Court partially vacated the January 2020 Board decision and remanded the issue of entitlement to a TDIU prior to January 20, 2017 for further proceedings. After the Board again denied the claim in April 2021, the Veteran appealed the decision to the Court and pursuant to a Joint Motion for Remand (JMR) in September 2021, the Board's April 2021 decision was vacated and remanded back to the Board. Essentially, the October 2020 JMPR and September 2021 JMR found that the Board failed to define "substantially gainful employment." See, e.g., September 2021 JMR, p.2. 1. Entitlement to a TDIU on an extraschedular basis prior to January 20, 2017, is remanded. The issue of entitlement to a TDIU on an extraschedular basis prior to January 20, 2017, is remanded to correct a duty to assist error that occurred prior to the August 2019 rating decision on appeal. Specifically, the AOJ did not satisfy a regulatory duty under 38 C.F.R. § 4.16(b) to refer the case to the Director of Compensation Service for extraschedular consideration. As described in Ray v. Wilkie, the correct standard for referral is whether there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities." 31 Vet. App. 58, 66 (2019). Based on the evidence of record there is a reasonable possibility that the Veteran is unemployable due to his service-connected disabilities prior to January 20, 2017. For instance, an August 2015 VA examination report noted that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. A November 2015 PTSD Disability Benefits Questionnaire (DBQ) found the Veteran had total occupational impairment based on his inability to work under authority. A September 2016 medical opinion found that due to the Veteran's age (76 years of age) and having been out of the work force for more than a quarter of a century, the Veteran is unfit for gainful employment. The Board notes that although age is not a consideration for eligibility for a TDIU, the Veteran skills, training and work experience are factors for consideration. Given the forgoing, there is sufficient evidence to substantiate a reasonable possibility that the Veteran is unemployable by reason of his service-connected disabilities prior to January 20, 2017. Accordingly, referral of the claim for a TDIU is warranted. The matters are REMANDED for the following action: Refer the Veteran's claim for TDIU prior to January 20, 2017, to VA's Director of Compensation Service for extraschedular consideration. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sarah B. Richmond, 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.