Citation Nr: A21020596 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 201201-122131 DATE: December 28, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) prior to November 21, 2011, for accrued benefits purposes, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from October 1957 to October 1960. The Veteran passed away in February 2017. The appellant is the Veteran's surviving spouse. In the December 2020 VA Form 10182, Decision Review Request: Board Appeal, the Appellant elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, which was issued in May 2020. 38 C.F.R. § 20.301. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to November 21, 2011 for accrued benefits purposes. is remanded. The Appellant, through Counsel, asserts that "expert evidence of record shows [the Veteran] was unemployable at least as early as 1993. However, we assert TDIU as far back as 1976." The May 2019 VA Form 21-8940 Veteran's Application for Increased Compensation Based on Unemployability reports that the Veteran last worked in April 1993 as a groundskeeper and was no longer working due to "all service connected conditions, including but not limited to: lumbar spine." By way of background, prior to November 21, 2011, the Veteran was service-connected at 20 percent disabled with a 10 percent disability rating for his spine, and 10 percent disability rating for left lower extremity radiculopathy, both ratings effective September 26, 2003. Prior to this September 2003 date, the Veteran had no service-connected disability ratings. The AOJ awarded TDIU in May 2020, on a schedular basis, effective November 21, 2011. The AOJ did not refer the issue of an extraschedular TDIU for the period on appeal prior to November 21, 2011 to the Director, Compensation Services. 38 U.S.C. § 5103A(g); 38 C.F.R. §§ 3.159(c), 20.802(a) (a pre-decisional duty to assist error committed prior to the issuance of the decision being reviewed must be returned to the AOJ with instructions to correct the error). The Board notes that prior to November 21, 2011, the Veteran does not meet the minimum rating requirements of § 4.16(a) for a TDIU rating on a schedular basis. As the Board is precluded from awarding an extraschedular TDIU in the first instance, on remand, the Veteran's claim must be referred to VA's Director of Compensation Service, for extraschedular consideration of a TDIU prior to November 21, 2011 under 38 C.F.R. § 4.16(b); see also Ray v. Wilkie, 31 Vet. App. 58, 66 (2019) (entitlement to an extraschedular TDIU must be referred to the Director for an initial determination where there is sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable due to service-connected disabilities), aff'd Snider v. McDonough, No. 19-6707, 2021 U.S. App. Vet. Claims LEXIS 1265 (Nov. 19, 2021). The Board observes that in an August 2019 Memorandum, prior to the award of TDIU on a schedular basis in May 2020, the Director, Compensation Services determined that a TDIU on an extraschedular basis was not warranted for the entire period on appeal. However, in her memorandum, the Director did not address the May 6, 2018 Vocational Consultant opinion that the Veteran was unable to seek and hold gainful employment since April 1993 due to his lower back disability. Under the holdings of Snider and Ray, the Board requires a determination regarding extraschedular TDIU that addresses all the relevant evidence of record for the period prior to November 21, 2011. 38 C.F.R. § 4.16. Of note, the Board makes no intimation as to the merits of the underlying extraschedular TDIU question. The matters are REMANDED for the following action: Refer the Appellant's TDIU appeal for an effective date prior to November 21, 2011 to VA's Director, Compensation Service for consideration on an extraschedular basis. The Director must include 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. Specifically, the Director must address the May 2018 Vocational Rehabilitation report. 38 C.F.R. § 4.16(b). T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Nelson 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.