Citation Nr: 21005933 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 14-19 857 DATE: February 2, 2021 REMANDED Entitlement to an extraschedular total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Marine Corps from May 1976 to May 1980. In November 2019 the Board of Veterans’ Appeals (Board) remanded the issue of entitlement to a TDIU for further development. Specifically, the Board instructed the Regional Office (RO) to provide the Veteran with notice of information and evidence necessary to substantiate a TDIU claim and to consider the Veteran’s entitlement to a TDIU. Upon review of the record, the Board finds that the claim must be remanded. The Veteran contends that he has been unable to work due to his service-connected degenerative disc disease and joint disease of the lumbar spine (back condition) and sciatic nerve of the right lower extremity. Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation.  38 C.F.R. § 3.340. The Board may assign total disability ratings for compensation where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more.  38 C.F.R. § 4.16(a). A total disability rating may also be granted where the schedular rating is less than 100 percent and the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(b). The Veteran is currently service connected for a back condition and sciatic nerve of the right lower extremity. The Board notes that he has been rated 20 percent for his back condition since October 30, 2007, and 20 percent for his sciatic nerve of the right lower extremity from June 14, 2019. His combined disability rating was 20 percent from October 30, 2007, and increased to 40 percent from June 14, 2019. The Veteran’s ratings do not satisfy the TDIU threshold requirements for the entire period on appeal. See 38 C.F.R. § 4.16(a). The Veteran asserts he last worked as a full-time employee in October 2009 as a driver. See February 2020 VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability. A January 2009 VA examination report reflects that the Veteran had increased tardiness and absenteeism due to his back and that the Veteran suffered from memory loss, decreased concentration, decreased mobility, decreased manual dexterity, problems with lifting and carrying, difficulty reaching, lack of stamina, weakness or fatigue, decreased strength, urinary incontinence, and pain. A December 2009 VA examination report shows that the Veteran reported working mostly in construction and worked as a truck driver until 2009 when he quit. He further reported that he experienced flare-ups three to four times a week, that pain persisted for several hours, and that he had to lie down and was unable to work at all. Finally, a November 2012 treatment note reflects that the Veteran’s low back pain was exacerbated by driving and any kind of work and interfered with his normal activities of daily living, while a September 2014 treatment note indicates that the Veteran reported he could not work due to his pain. See April 2018 CAPRI, pp. 709 &765. As the record reflects that the Veteran’s service-connected back condition may have impacted his ability to work, the Board finds that referral to the Director, Compensation Service, for consideration of the assignment of a TDIU on an extraschedular basis is warranted.  The matters are REMANDED for the following action: 1. Submit the issue of entitlement to a TDIU, to the Veteran to the Director of Compensation Service, for consideration of whether TDIU on an extraschedular basis is warranted in accordance with the provisions of 38 C.F.R. § 4.16 (b). 2. If the determination of the issue on appeal remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case (SSOC) which addresses all evidence associated with the claims file since the last SSOC. The Veteran and his representative should be afforded the applicable time period in which to respond. Thereafter, the case should be returned to the Board for appellate review. R. M. KELLY Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. L. Park, 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.