Citation Nr: 21073222 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 16-36 596 DATE: December 7, 2021 REMANDED The claim of entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected asthma is remanded. REASONS FOR REMAND The Veteran served in the United States Navy from May 1977 to September 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the Board denied entitlement to a TDIU. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a February 2021 Memorandum Decision, the Court vacated the Board's denial of entitlement to a TDIU and remanded the issue to the Board for action consistent with the Memorandum Decision. Specifically, the Court determined that the Board erred in failing to make any findings regarding the Veteran's rights to a Board hearing, including whether he was notified that a hearing would not be scheduled and whether he had waived his right to a hearing. The Court acknowledged that the Veteran did not affirmatively elect a hearing at any time during the pendency of his appeal. In this regard, the Board notes that when the Veteran perfected his appeal with the submission of a VA Form 9, Substantive Appeal, he left blank Box 10 titled "Optional Board Hearing." As such, he failed to either decline a hearing or choose a format for a hearing. In September 2021, the Board sent the Veteran and his representative a letter and informed them that hearings are not mandatory for a judge to decide an appeal, a Board hearing could be held via video teleconference or in person, and the Veteran could submit a statement in lieu of a having a hearing. The Veteran was specifically advised that if he failed to respond within thirty days of the letter, the Board would assume that he did not want a hearing and proceed with a decision in the appeal. Neither the Veteran nor his representative responded to the letter and there is no indication that the Veteran and his representative did not receive the letter. Additionally, the Veteran has never affirmatively elected a hearing and hearings are not afforded in every case as an election is required. As such, the Board may proceed with a decision in this case as no hearing has been requested. The Veteran is currently service-connected only for asthma, which is rated 30 percent disabling. Therefore, he does not meet the schedular percentage criteria for assignment of a TDIU. 38 C.F.R. § 4.16(a). However, it is VA's policy to grant a TDIU in all cases where a service-connected disability or disabilities cause unemployability, regardless of the ratings for such disability or disabilities. 38 C.F.R. § 4.16(b). Significantly, however, the Board has no power to award a total evaluation on the basis of 38 C.F.R. § 4.16(b) in the first instance without evidence that the claim was referred to VA's Director of Compensation Service for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b). Bowling v. Principi, 15 Vet. App. 1, 10 (2001). In this case, the RO did not submit the case for extraschedular consideration. However, the Board finds sufficient evidence for referral to VA's Director of Compensation Service for extraschedular consideration. In this regard, during a June 2011 VA respiratory examination, the Veteran was reported to be limited to walking 150 feet or less, he was unable to climb stairs due dyspnea, and was reported to have limitations in doing physical jobs due to asthma. He was noted to have retired from the United States Postal Service (USPS) in April 2006 due to asthma and other problems. Additionally, during a May 2016 VA respiratory examination, the examiner indicated that the Veteran's asthma would not preclude light duty or sedentary employment; however, employment duties which required heavy exertion should be avoided given the potential for shortness of breath or dyspnea. On a VA Form 21-8940 received in February 2011, the Veteran reported that he worked as a mail carrier for the USPS from February 1986 to April 2006 and became too disabled to work in April 2006 due in part to asthma. He reported that he completed four years of high school and had no other education or training. In light of the evidence suggesting that the Veteran was precluded from employment which required heavy exertion and his only job was as a mail carrier which requires exertion, a remand of the claim is necessary. The matters are REMANDED for the following action: (Continued on the next page) 1. Refer the case to the Director of Compensation Service for a determination as to whether the Veteran is entitled to assignment of a TDIU on an extraschedular basis, in accordance with the provisions of 38 C.F.R. § 4.16(b). The rating board should include a full statement of all factors having a bearing on the issue. 2. Then, readjudicate the claim on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. L. BARSTOW Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Cryan, 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.