Citation Nr: 21072592 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 13-24 500 DATE: December 3, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) prior to April 16, 2021 is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from May 1966 to April 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida. Although that decision did not formally address the issue of entitlement to a TDIU, the Board determined in December 2020 that TDIU was part and parcel of the appeal of that decision pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). In July 2021, following a remand by the Board in December 2020, the agency of original jurisdiction (AOJ) granted TDIU, effective April 16, 2021. However, the issues addressed in the August 2009 rating decision originated with a claim that was received on February 25, 2009. When the AOJ grants TDIU for a portion of the appeal period, but fails to grant the benefit in full (i.e., fails to grant TDIU for the entire period on appeal), that portion of the TDIU claim that has been denied remains on appeal. See Payne v. Wilkie, 31 Vet. App. 373 (2019); Harper v. Wilkie, 30 Vet. App. 356 (2018). Entitlement to a TDIU prior to April 16, 2021 is remanded. It is the established policy of VA that all veterans who are unable to secure or follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). A total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. A total disability may or may not be permanent. Total ratings will not be assigned, generally, for temporary exacerbations or acute infectious diseases except where specifically prescribed by the schedule. 38 C.F.R. § 3.340(a). A total disability rating for compensation purposes may be assigned where the schedular rating is less than total, where it is found that the disabled person is unable to secure or follow substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, providing 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, 4.16(a). In this case, the Veteran is service connected for lumbar degenerative disease with scoliosis and invertebral disc syndrome, evaluated as 20 percent disabling from February 25, 2009, and 40 percent from April 1 2012; peripheral radiculopathy of the right lower extremity, evaluated as 10 percent disabling from January 7, 2020, and 20 percent from April 16, 2021; and peripheral radiculopathy of the left lower extremity, evaluated as 10 percent disabling from October 1, 2014, and 20 percent from April 16, 2021. His overall combined rating is 20 percent from February 25, 2009; 40 percent from April 1, 2012; 50 percent from October 1, 2014; and 60 percent from April 16, 2021. See 38 C.F.R. § 4.25. As such, he does not satisfy the schedular requirements for consideration of TDIU prior to April 16, 2021. The Board notes, however, that a TDIU may be awarded on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). In his May 2021 VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability), the Veteran reported that he had been unemployed since January 1990 due to scoliosis (i.e., his service-connected lumbar spine disability) and requested extraschedular consideration on that basis. He advanced similar contentions in a September 2020 statement. Under the circumstances, the Board finds that the case warrants referral to the Director of the Compensation Service for initial consideration of a TDIU on an extraschedular basis. See Ray v. Wilkie, 31 Vet. App. 58, 66 (2019) (requiring referral where there is sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable due to service-connected disabilities). A remand is required. This matter is REMANDED for the following action: 1. Refer the Veteran's case to the Director of the Compensation Service for consideration of whether a TDIU is warranted on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) for any part or all of the period from February 25, 2009 to April 15, 2021. 2. After completing the above, and any other development as may be indicated, the issue remaining on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board John Kitlas, 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.