Citation Nr: 21073430
Decision Date: 12/08/21	Archive Date: 12/08/21

DOCKET NO. 18-25 657
DATE: December 8, 2021

REMANDED

Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded.

REASONS FOR REMAND

The Veteran served on active duty from July 1975 to November 1984.

The Veteran appealed January and August 2016 rating decisions by the Agency of Original Jurisdiction (AOJ).  

A Board of Veterans' Appeals (Board) hearing was held in April 2021.  A transcript is of record.

In October 2021, the Board remanded the Veteran's claim to the AOJ for further action consistent with the Board's remand directives.  The claim is back before the Board for further appellate proceedings.  The Board finds there has been substantial compliance with its remand directives.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).

The Veteran primarily worked as a chef throughout his life, but also briefly worked part time doing security.  See May 2016 VA Form 21-8940; April 2021 Board Hearing Tr. at 11.  The Veteran has a high school education and went to culinary school.  Although the Veteran worked as a chef during the period on appeal, the record suggest such employment is marginal.  The Veteran worked part-time, made $1,025 a month, but only worked four months from August 2015 to December 2015.  

The Veteran has numbness and pain in his extremities and neck pain that impacts bending and lifting.  See January 2016 examination reports.  The Veteran testified that he cannot reach, turn, bend, or cook due to his conditions and that his hand and neck pain make it hard to move around the kitchen.  See Board Hearing Tr. at 10, 12.  SSA records indicate the Veteran is disabled and note the Veteran's spine, left arm, and carpal tunnel conditions.    

The Veteran currently does not meet the schedular criteria for TDIU.  The Board is prohibited from awarding extraschedular TDIU in the first instance.  Wages v. McDonald, 27 Vet. App. 233, 235-39 (2015).  Given the fact the Veteran's training and experience is in the culinary arts, and such positions require prolonged physical activity and use of the hands, the Board finds referral of TDIU on an extraschedular basis is warranted.  Accordingly, remand is required to refer consideration of extraschedular TDIU to the Director of the Compensation Service.  See 38 C.F.R. § 2.802(a).

The matter is REMANDED for the following action:

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Refer the Veteran's claim for TDIU to the Director of the Compensation Service for extra-schedular consideration of entitlement to TDIU.  If the benefit sought on appeal is not granted, the case should thereafter be returned to the Board, if otherwise in order.

 

 

DONNIE R. HACHEY

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Zheng, Associate 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.