Citation Nr: 21071673 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 16-20 702 DATE: December 1, 2021 REMANDED A total disability rating based on individual unemployability (TDIU) prior to February 27, 2012 is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1974 to July 1989 in the United States Army. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office. A TDIU prior to February 27, 2012 is remanded. In a June 2021 decision, the Board granted a TDIU from February 27, 2012 onward and remanded the above claim for further development. In the remand, the Board directed that if, after implementing an award of service connection for diabetes mellitus, the combined schedular rating criteria under 38 C.F.R. § 4.16(a) were not met, the VA Regional Office was to refer the matter of the Veteran's entitlement to a TDIU prior to February 27, 2012 to VA's Director, Compensation Service, (Director) for consideration of an "extraschedular rating" pursuant to 38 C.F.R. § 4.16(b). In reaching the determination to refer the case to the Director, the Board noted a private medical opinion supporting that the Veteran has been unemployable due to his service-connected disabilities since April 2010. While the VA Regional Office implemented the award of service connection of diabetes mellitus as directed, it erroneously determined that the combined rating criteria under 38 C.F.R. § 4.16(a) were met prior to February 27, 2012, and found that a referral to the Director was not necessary. See September 2021 Supplemental Statement of the Case. The pertinent appeal period here ranges from the date of the Veteran's May 2010 informal claim for a TDIU, including the one-year "look back" period, to February 27, 2012. His combined disability rating was 100 percent (temporary total rating) from February 1, 2009, 40 percent from March 1, 2010, and 60 percent from April 1, 2010 through February 27, 2012. During the pertinent time period, he was service-connected for the following three compensable disabilities: right hip disability, diabetes mellitus, and right ear tinnitus. See July 2021 Rating Decision Codesheet (most recent codesheet). He was also service-connected for hearing loss, hemorrhoids, and a scar, and was receiving a noncompensable rating for these disabilities. 38 C.F.R. § 4.16(a) provides that if there is only one disability, the disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. Here, there was more than one service-connected disability and the combined schedular rating did not reach 70 percent, other than during his receipt of a temporary total rating in 2009. None of the exceptions set forth in 38 C.F.R. § 4.16(a) apply so as to consider all of these disabilities as one. In this regard, in the September 2021 Supplemental Statement of the Case, the VA Regional Office correctly determined that the right hip disability and diabetes mellitus arose from a common etiology (the right hip as due to a motorcycle accident and diabetes as due to the right hip), and thus may be considered as one pursuant to 38 C.F.R. § 4.16(a). See October 1989 rating decision (granting service connection for the right hip disability); June 2021 Board decision (granting service connection for diabetes mellitus). However, the Veteran was also service-connected for tinnitus during this time, which arose from a distinct etiology, namely, acoustic trauma due to gunfire. See April 2009 rating decision (granting service connection for right ear tinnitus). Moreover, he was service-connected for several noncompensable disabilities, including hemorrhoids, which also arose from a distinct etiology. Thus, the combined disability rating was required to be 70 percent. Given the Board's June 2021 order to refer the matter to the Director should the combined schedular rating criteria under 38 C.F.R. § 4.16(a) not be met prior to February 27, 2012, further remand is required. Stegall v. West, 11 Vet. App. 268 (1998). The matter is REMANDED for the following action: Obtain a determination from the Director, Compensation Service, as to whether the Veteran is entitled to a TDIU due to service-connected disabilities prior to February 27, 2012 on an extraschedular basis, in accordance with the provisions of 38 C.F.R. § 4.16(b). M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith, 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.