Citation Nr: 21073068 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 09-00 115A DATE: December 7, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) under 38 C.F.R. § 4.16(b), prior to August 19, 2009, is remanded. REASONS FOR REMAND The Veteran had active service from December 1976 to June 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to a TDIU under 38 C.F.R. § 4.16(b), prior to August 19, 2009 is remanded. The Veteran contends that he is entitled to TDIU, prior to August 19, 2009, due to his knees, elbows, wrist, shoulder, back and psychiatric disabilities. See December 2006 VA Form 21-8940. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this 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. 38 C.F.R. § 4.16 (a). Even when the criteria under 38 C.F.R. § 4.16 (a) are not met, entitlement to a TDIU 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). The Board does not have the authority to assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Rating boards will refer to the Director of the Compensation Service for extra-schedular consideration all cases of veterans who are unemployable by reason of service connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16 (a). Prior to August 19, 2019, the Veteran did not meet the requisite rating requirements under 38 C.F.R. § 4.16 (a). In its February 2021 remand, the Board referred the Veteran's claim to the VA Director of the Compensation Service, for extraschedular consideration under the provisions of 38 C.F.R. § 4.16 (b). The Director of Compensation Service considered whether extraschedular consideration was warranted in a March 2021 decision and determined that individual unemployability benefits were not warranted. Consequently, as the claim has been denied on an extraschedular basis by the Chief of Compensation Service, the Board may now consider whether a TDIU is warranted under the provisions of 38 C.F.R. § 4.16 (b). The Board notes that there is evidence that the Veteran started vocational rehabilitation with the VA and the state in 2004 and 2005. See December 2006 VA Form 21-8940; August 2009 Decision Review Officer (DRO) Hearing Transcript, p. 12. The Veteran testified at the DRO hearing that he was "recondition[ed] to do soft work." DRO Hearing Transcript, p. 12. However, there are no vocational rehabilitation records of record (from either VA or the state). Basic eligibility in VA vocational rehabilitation services requires an initial evaluation to determine whether a vocational goal is feasible given the functional impairment due to a claimant's service-connected and non-service-connected disabilities. 38 C.F.R. §§ 21.40, 21.50-53. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The Veteran's vocational rehabilitation folder has not been associated with his electronic claims folder. Evidence from his folder may be relevant to his claim for entitlement to a TDIU. Therefore, the Board finds that a remand s necessary to obtain those records as well as any state generated vocational rehabilitation records. The matters are REMANDED for the following action: Obtain all of the Veteran's VA and state sponsored Vocational Rehabilitation records and associate those documents with the claims file. See December 2006 VA Form 21-8940; August 2009 Decision Review Officer (DRO) Hearing Transcript, p. 12, which indicates the received vocational rehabilitation services from VA and the state. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Baskerville 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.