Citation Nr: 21074440 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 15-28 064 DATE: December 15, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), prior to August 23, 2019, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from September 1989 to September 1993, and from June 1996 to December 1996. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in February 2014 by the Department of Veterans Affairs (VA) Regional Office in Albuquerque, New Mexico. In May 2016, the Veteran testified at a Board hearing before a Veterans Law Judge. A transcript of the hearing is of record. As the Veterans Law Judge is no longer with the Board, the Veteran was informed that he may testify at a new Board hearing before a Veterans Law Judge in a November 2020 letter; however, he did not respond to such letter. 38 U.S.C. § 7107(c);38 C.F.R. §§19.3(b), 20.707. The above claim was remanded in September 2018, November 2020 and in July 2021 for additional development. While on remand, a July 2021 rating decision awarded entitlement to a TDIU as of August 23, 2019. Additionally, in March 2021 rating decision, the Agency of Original Jurisdiction (AOJ) awarded a TDIU as of August 23, 2019, the date the Veteran met the schedular criteria for a TDIU. However, as the instant appeal period stems from August 14, 2013, the date of receipt of the Veteran's claim for an increased rating for his PTSD, the Board has assumed jurisdiction over the issue of entitlement to a TDIU prior to such date. Rice v. Shinseki, 22 Vet. App. 447 (2009); Harper v. Wilkie, 30 Vet. App. 345 (2018). Entitlement to a TDIU prior to August 23, 2019. The Veteran asserts that his service-connected disabilities prevent him from securing and following a substantially gainful occupation. In this regard, total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is 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 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). Rating boards should submit to the Director of Compensation Service (Director) for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). 38 C.F.R. § 4.16(b). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court held that the initial extra-schedular referral decision under § 4.16(b) should address whether there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities." Although VA did not receive the Veteran's Application for Increased Compensation Based on Unemployability (VA 21-8940) until September 25, 2013, the appeal period before the Board stems from the receipt of the Veteran's increased rating claim for his knee disability on August 15, 2013, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). As noted above, in a July 2021 rating decision, the AOJ awarded a TDIU as of August 23, 2019. Prior to such date, the Veteran's service-connected disabilities include left knee sprain, evaluated as 10 percent disabling, posttraumatic stress disorder (PTSD), evaluated as 50 percent disabling, abscess of the left ear, evaluated as noncompensable, and myofascitis of the upper back, evaluated as 10 percent disabling, effective September 25, 2013. Such evaluations result in a combined disability rating of 60 percent for the entire appeal period and, as such, the Veteran does not meet the schedular threshold for a TDIU at any time during the pendency of the appeal. Nonetheless, as previously noted, if it is shown that the Veteran is rendered unemployable by reason of service-connected disabilities, the Board may refer the case to the Director for extra-schedular consideration. 38 C.F.R. § 4.16(b). Here, the evidence suggests the Veteran may be unable to secure and follow a substantially gainful occupation due to his service-connected disabilities. In this regard, in the Veteran's September 2013 VA Form 21-8940, he reported that he completed two years of college, received a license in plumbing and heating in 1996 and worked in the plumbing and heating industry until 2012. The Veteran reported that he last worked full time in 2008, became too disabled to work in 2009 and worked part-time from 2010 to 2012. In an October 2013 VA examination for his PTSD, at which time it was noted that such results in occupational and social impairment with reduced reliability and productivity. At the examination, he reported that his attendance was sporadic due to going to jail, drinking and drug use. Additionally, while his performance was excellent and he got along with supervisors, he also reported that he would get into physical fights with subordinates. In regard to the Veteran's left knee disability, an October 2013 VA examiner found that such has an impact on his ability to work as it affects kneeling and prolonged standing. It was specifically noted that the Veteran did not report flare-ups, however he had increasing pain with prolonged kneeling or standing that limit the use of his knees until he rests them and lets the pain decrease. At the May 2016 Board hearing, the Veteran testified that he experiences swelling of the left knee, his knee has given out while he was working, and he has fallen off ladders a few times due to his knee instability. Finally, as pertinent to his back disability, while a January 2014 VA examiner noted that his condition impacted the Veteran's ability to work, she did not specifically describe such impact. Based on the foregoing, the Board finds there is evidence in the record that the Veteran's service-connected disabilities impacted his ability to maintain substantially gainful employment during the period prior to his reaching the schedular requirement for TDIU.. Thus, matter should be referred to the Director for extra-schedular consideration of entitlement to a TDIU prior to August 29, 2013, pursuant to 38 C.F.R. § 4.16(b). The matters are REMANDED for the following action: Refer the claim of entitlement to a TDIU prior to August 23, 2019, to the Director of Compensation Service for extra-schedular consideration pursuant to 38 C.F.R. § 4.16(b). JEREMY J. OLSEN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Waite 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.