Citation Nr: 21076353 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 18-03 966 DATE: December 23, 2021 REMANDED Entitlement to a total disability based upon individual unemployability (TDIU), for the period beginning September 1, 2018, to prior to October 10, 2018, is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1969 to April 1973 and from December 1973 to December 1976. The Veteran testified at a hearing before the undersigned in April 2021. A transcript of the hearing has been associated with the record. The claim was previously before the Board in July 2021 when it was remanded for additional development. There has not been substantial compliance with the remand directives and the claim must be remanded again. Stegall v. West, 11 Vet. App. 268 (1998). In a September 2021 rating decision, the Agency of Original Jurisdiction (AOJ) effectuated the Board decision to grant service connection for a back disability and assigned a 20 percent disability rating for the back and a separate 10 percent rating for the right lower extremity radiculopathy, effective October 12, 2018. In a separate September 2021 rating decision, the AOJ granted TDIU effective, December 1, 2018. The Veteran is in receipt of a total evaluation for his left shoulder disability, a disability he contends causes his unemployability, effective October 10, 2018. Therefore, the claim for TDIU, has been recharacterized as listed identified above. See Harper v. Wilkie, 30 Vet. App. 356 (2018). The claim is remanded for referral to the Director of Compensation and Pension for extraschedular consideration. 38 C.F.R. § 4.16 (b); Bowling v. Principi, 15 Vet. App. 1 (2001). In the July 2021 decision, the Board specifically found that the Veteran was unemployable prior to September 1, 2018, because of his service-connected knee and shoulder disabilities. The AOJ effectuated the Board's grant of service connection for the back disability and then awarded TDIU effective beginning December 1, 2018, the date the Veteran met the schedular criteria for TDIU.38 C.F.R. § 4.16(a). The Veteran does not meet the schedular criteria for a TDIU, for the period from September 1 to October 10, 2018. His combined disability rating is 40 percent during this period. He contends that his service-connected disabilities, specifically his right knee and left shoulder disabilities, prevented him from working since March 2014. See VA 21-8940, January 2017. He reported he had two years of college education and previous work experience in Training Management for oilfield services. On remand, the AOJ incorrectly concluded that the Veteran did meet the schedular criteria for TDIU for the period under consideration and declined to refer the claim to the Director because Veteran was not unemployable because of service-connected disabilities. See September 2021 Supplemental Statement of the Case. The Veteran's employment training and history are physical in nature; the medical evidence shows his knee and shoulder disabilities impair his ability to work; the Board specifically found that the Veteran is unemployable prior to September 1, 2018, and; the AOJ granted TDIU from December 1, 2018, finding unemployability because of the same disabilities. Extraschedular consideration is warranted. The matters are REMANDED for the following action: Refer the claim for entitlement to TDIU, for the period beginning September 1, 2018, to prior to October 10, 2018, to the Director of the Compensation and Pension Service for consideration of entitlement to an extraschedular basis pursuant to 38 C.F.R. § 4.16 (b). M.E. LARKIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Robert J. Burriesci, 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.