Citation Nr: 21074727 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 15-42 807A DATE: December 16, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to December 10, 2012, is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1969 to February 1971. In June 2019, the Veteran's claim on appeal was remanded. Additionally, the Board notes that the Veteran's claim for entitlement to a TDIU is reviewed under the legacy appeal review system. The Board notes that the Veteran has a pending appeal under the Veterans Appeals Improvement Modernization Act of 2017 (AMA) review system for the issues of entitlement to an increased rating and earlier effective date for his adjustment disorder. See October 2021 VA Form 10182 Notice of Disagreement. As the issue was appealed under the AMA review system, the Board does not have jurisdiction under the legacy review system to review those claims at this juncture. As such, the Veteran's appeal under the AMA review system will be the subject of a separate Board decision. TDIU At the onset, the Board notes that in a February 2021 rating decision, the RO granted the Veteran's claim for a TDIU, with an effective date of December 10, 2012. The RO granted the Veteran's TDIU effective the date that his application for a TDIU was received and indicated that this was a full grant of benefits sought. While the record reflects that the Veteran's formal application for a TDIU was received on December 10, 2012, the Veteran's claim for a TDIU is based, in part, on his service-connected back and peripheral neuropathy disabilities. The Veteran filed increased rating claims for his service-connected back and peripheral neuropathy disabilities on March 16, 2011. See March 2011 VA Form 21-526b, Veteran Supplemental Claim. As such, TDIU attaches to the increased ratings claims that were on appeal. The issue of entitlement to a TDIU is part and parcel of the underlying increased rating claims pursuant to Harper v. Wilkie. 30 Vet. App. 356, 361 (2018). In Harper v. Wilkie, the Court held that, if a claimant files an NOD seeking a higher evaluation for a service-connected disability and, during the processing of that appeal, files a request for TDIU based on the same disability, the request for TDIU becomes part and parcel of the appeal that was the subject of the NOD unless and until the claimant is either granted TDIU for the entire period on appeal or the claimant withdraws the appeal. Id. at 361 (2018); see also Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (per curiam) ("When entitlement to TDIU is raised during the adjudicatory process of the underlying disability or during the administrative appeal of the initial rating assigned for that disability, it is part of the claim for benefits for the underlying disability."); Juarez v. Peake, 21 Vet. App. 537, 543 (2008) ("[O]nce an NOD has been filed, further RO decisions, which do not grant the benefit sought, cannot resolve the appeal."). Given the aforementioned, the period on appeal begins March 16, 2011. Therefore, the issue of entitlement to a TDIU prior to December 10, 2012 remains on appeal. With respect to the Veteran's increased ratings for bilateral upper and lower neuropathy, the Veteran opted to have those claims reviewed under the AMA review system, requesting higher-level review. As such, the Board does not have jurisdiction to review those claims at this juncture. See May 2021 correspondence. With respect to the Veteran's increased rating claim for his back disability, in a June 2019 Board decision, the Board denied an increased rating for the Veteran's back disability. As such, that issue is no longer on appeal before the Board. Entitlement to a TDIU prior to December 10, 2012 A total rating for compensation purposes may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided 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 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In this case, the minimum schedular requirements for TDIU prior to December 10, 2012, are not met. During the period on appeal, the Veteran was in receipt of a 40-percent rating for a back disability; peripheral neuropathy of the right upper extremity at 10 percent; peripheral neuropathy of the left upper extremity at 10 percent; peripheral neuropathy of the right lower extremity at 10 percent; and peripheral neuropathy of the left lower extremity at 10 percent. The total combined rating during the period on appeal was 60 percent. Given such, because the Veteran did not have a rating of at least 60 percent for a single disability or a combined rating of at least 70 percent, the Veteran has not met the schedular requirements. For those veterans who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), total disability ratings for compensation may nevertheless be assigned when it is found that the service-connected disabilities are sufficient to produce unemployability. 38 C.F.R. § 4.16(b). Although the Board cannot grant a TDIU in the first instance under this regulation, it must still determine whether a remand for referral to the Director of Compensation is warranted. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). 38 C.F.R. § 4.16(b). In Ray v. Wilkie, 31 Vet. App. 58, 66 (2019), the Court held that the proper standard for the initial decision of whether to remand for referral to the Director is whether there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities." Thus, the issue in this case is whether there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities" for the period prior to December 10, 2012. Based on the evidence of record, the Board finds that there is sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities for the period prior to December 10, 2012. In his December 2012 TDIU application, the Veteran noted that he owned a lawn care service from 1999 to 2008. The Veteran reported that the last time he worked full time was in November 2010 as a night club owner. In a June 2011 VA examination report, with respect to the functional limitations due to his back disability, the Veteran reported that the person that runs his business lives with him and takes care of grocery shopping, preparing meals, and doing all household chores. The Veteran reported that he used to be very active. He used to love walking, hiking, going to the gym, but he can no longer do any of these activities. He also reported that driving is scary because if his feet go numb suddenly, he cannot feel the gas and/or brake pedals. With respect to the functional limitations due to his neuropathy disabilities, the Veteran reported that it is difficult for him to write or work on the computer. The Veteran reported that it is becoming increasingly difficult to grip the steering wheel while driving. He also noted he has difficulty with personal hygiene and grooming can because his hands feel numb and burning. Additionally, the Board notes that the disability records from Social Security Administration (SSA) reflect that the Veteran has not engaged in substantial gainful activity since January 1, 2008, in part to due his service-connected back and neuropathy conditions. See April 2010 SSA Decision. The Board acknowledges that findings by SSA are not binding on the Board. However, the Board finds that this evidence is probative in supporting a finding that the Veteran has been unable to obtain and maintain substantially gainful employment due to his service-connected disabilities for the period prior to December 10, 2012. The Board, therefore, will remand the claim of entitlement to a TDIU for the period prior to December 10, 2012, for referral to the Director of the Compensation and Pension Service in accordance with 38 C.F.R. § 4.16(b) for consideration of whether a TDIU is warranted on an extra-schedular basis. The matter is REMANDED for the following action: Refer the issue of entitlement to TDIU for the period from March 16, 2011, to December 10, 2012, to the Director of Compensation Service for consideration of assignment of an extraschedular rating, pursuant to 38 C.F.R. § 4.16(b). Prior to submission of the claim to the Director of Compensation Service, prepare a full statement as to the Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue of entitlement to TDIU for the period from March 16, 2011, to December 10, 2012. N. NELSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Abdelbary, 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.