Citation Nr: 21072587 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 15-34 919 DATE: December 3, 2021 REMANDED Entitlement to a total disability rating based upon individual employability (TDIU) prior to June 12, 2015, to include on an extraschedular basis, is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1969 to September 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2014 Department of Veterans Affairs (VA) rating decision. The November 2020 rating decision granted TDIU, effective June 12, 2015. This matter was previously before the Board in November 2019 and July 2021, at which time it was remanded for further development. Entitlement to a TDIU prior to June 12, 2015, to include on an extraschedular basis, is remanded. In November 2020, the RO granted TDIU, effective June 12, 2015, the date at which the Veteran's service-connected disability evaluations satisfied the schedular criteria for a TDIU rating under 38 C.F.R. § 4.16(a). The Veteran, through his representative, indicated that he is seeking entitlement to a TDIU from October 28, 2013, the date VA received the Veteran's VA Form 21-8940. See January 2021 statement. For the period from October 28, 2013 to June 11, 2015, the Veteran's combined rating was 50 percent. Specifically, during the appellate period in question, the Veteran's service-connected disabilities included: intervertebral disc disease of the lumbar spine with residual degenerative arthritis, rated as 20 percent disabling; midtarsal degenerative joint disease and arthritis of the left foot with residual tendon repair, rated as 10 percent disabling; residuals of right peroneal tendon repair, rated as 20 percent disabling; left hip bursitis, evaluated as 10 percent disabling form January 23, 2015; and right ankle and lower leg scar, rated as noncompensably disabling. Despite failing to meet the threshold percentage standards set forth under 38 C.F.R. § 4.16(a), the Veteran may nevertheless warrant a TDIU if it is established by the evidence of record that his service-connected disability or disabilities has rendered him unable to secure and follow substantially gainful employment. If there is a possibility of substantiating such a claim, then the case is referred to the Director, Compensation Service for extra-schedular consideration in the first instance. 38 C.F.R. §§ 3.340(a), 3.341(a) and 4.16(b). In July 2021, the Board remanded this matter to the AOJ for a determination in the first instance whether the claim for a TDIU for the period prior to June 12, 2015 on an extraschedular basis warrants referral to the Director of Compensation under 38 C.F.R. § 4.16(b). The AOJ determined in August 2021 that referral to the Director of Compensation was not warranted. Nevertheless, the Board will consider whether the Veteran's service-connected disabilities have prevented him from securing or following a substantially gainful occupation such that referral for consideration of entitlement to a TDIU on an extraschedular basis is warranted under 38 C.F.R. § 4.16(b). In his VA Form 21-8940, the Veteran indicated that he last worked full time in September 2011 as a US Postal Service manual laborer due to all his disabilities. He also indicated that he completed four years of high school. Review of the record reflects that the Veteran also underwent training as a machinist. The Veteran was afforded a VA spine examination in May 2013. The Veteran's forward lumbar flexion was limited to 50 degrees with restricted movement, pain on movement, and interference with sitting, standing and/or weightbearing were noted. Nonetheless, the examiner assessed that the Veteran's lumbar spine disability did not affect his ability to work. Similarly, the Veteran was afforded another VA spine examination in September 2014. The Veteran's forward flexion was again assessed to be restricted to 50 degrees. Nonetheless, the Veteran's lumbar spine disability was again assessed to have no functional impact. The Veteran was afforded a VA ankle examination in September 2014. The Veteran reported daily right ankle pain, and the examiner assessed his left foot injury to be moderate in nature. Pain was noted both on movement and on weight bearing. Furthermore, pain was noted to contribute to functional loss. The examiner stated clearly that the Veteran has functional impairment of the ankle. Also in September 2014, the Veteran was afforded a VA foot examination. The Veteran reported daily left foot pain, yet the examiner assessed that the Veteran's foot disability produced no functional impact. Finally, the Veteran was afforded a VA hip examination for his left hip disability in May 2015. The Veteran complained of daily, moderate hip pain which worsens at night. The Veteran also reported sometimes having problems walking because of pain in the groin, and that his sitting is limited to between 1.5 and 2 hours due to hip pain. The examiner assessed that in terms of functional impact, the Veteran's hip disability limits the Veteran's sitting to between 1.5 and 2 hours. The Board also acknowledges the Veteran's own lay statements of record, including those received in January 2021, indicating he stopped working due to pain caused by his musculoskeletal disabilities. The Board finds based on the aforementioned that there is "sufficient evidence to substantiate a reasonable possibility that a Veteran is unemployable by reason of his or her service-connected disabilities." Ray v. Wilkie,31 Vet. App. 58, 66 (2019). In this regard, the VA spine examinations show restrictions of motion and objective medical evidence indicating functional impairment due to pain. Furthermore, the Veteran's contemporaneous musculoskeletal examinations all indicate that his disabilities produce functional impairment. Additionally, the Veteran's own lay statements indicate that it is the combination of his service-connected musculoskeletal disabilities, which caused significant functional impact and resulted in his inability to continue working. Consequently, a remand for referral to the Director of Compensation for consideration of a TDIU on an extraschedular basis is warranted. The matters are REMANDED for the following action: The AOJ is directed to refer to the Director of Compensation the issue of entitlement to a TDIU on an extraschedular basis pursuant to 38C.F.R. §4.16(b). A. J. Spector Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Comninos, Georgio 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.