Citation Nr: 21007693 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 14-21 945 DATE: February 10, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1952 to February 1956. This appeal to the Board of Veterans’ Appeals (Board) is from a June 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This claim since has been remanded several times for further development – including most recently in March 2020 to obtain all outstanding VA treatment records and to have the Veteran reexamined to reassess the severity of his service-connected low back disability (chronic lumbosacral strain). A July 2020 rating decision since issued, on remand, increased the rating for the low back disability from 20 to 40 percent as of June 20, 2020. Even more recently, in January 2021, in further support of this claim, the Veteran testified at a “virtual” hearing before the undersigned Veterans Law Judge of the Board. A transcript of the proceeding is of record.   Entitlement to a TDIU is again remanded. The Veteran asserts that he is unemployable because of his service-connected low back disability (chronic lumbosacral strain) and, therefore, entitled to TDIU. Although, as mentioned, the rating for his low back disability rather recently was increased from 20 to 40 percent as of June 20, 2020, the Veteran still does not have sufficient rating for this disability to qualify for a TDIU on a schedular basis, meaning according to 38 C.F.R. § 4.16(a), since this is his only service-connected disability and it is not rated as at least 60-percent disabling. However, even in this circumstance according to § 4.16(b), it is the policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of a service-connected disability shall be rated totally disabled. Thus, if, as here, a Veteran fails to meet the rating requirements enunciated in § 4.16(a), an extra-schedular TDIU should be considered alternatively under § 4.16(b) if there is at least suggestion he is unemployable due to his service-connected disability. That said, the Board does not have jurisdictional authority to determine eligibility for an extra-schedular TDIU in the first instance, having instead to refer the matter to the Director of VA's Compensation Service or appropriate designee for this special initial consideration. See Barringer v. Peake, 22 Vet. App. 242 (2008). This does not, however, preclude the Board from determining whether this special consideration is warranted. See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996). During his recent hearing before this Board, the Veteran testified that he has a brace for his service-connected low back disability but that, even using it, he can barely get to his mailbox or do anything requiring much effort. As an example, he pointed out that he had to take a cab to his hearing since he cannot drive.   He added that he does not have any degree or formal education of significance, pointing out he last worked full-time many years ago, in 1980, as a custodian for the General Services Administration (GSA). He said he had to stop doing that job because of his service-connected low back disability, and that he since has worked a couple or so times as a census taker, but explained that only happens every 10 years when the census is done, and, in any event, he can no longer even do that since he cannot drive and get around to the various homes to get the census information. He said he receives benefits from the Social Security Administration (SSA) but based on his age (he started getting these benefits when he turned 85), not instead because of disability, so including owing to his service-connected disability. But he also said no one will hire him at his advanced age, so regardless. The evidence in the Veteran’s file shows that his previous occupational experience includes working as a bus driver, postal worker, and, as mentioned, census taker. The report of his April 2017 VA examination indicates that his low back disability would impact his ability to work, but that is contemplated in the schedular rating he has for this service-connected disability. See 38 C.F.R. §§ 4.1, 4.15. Moreover, the more recent October 2019 and June 2020 VA examiners surmised his low back disability would not prevent him from completing sedentary work. However, neither VA examiner considered his lay statement in August 2016 correspondence that his low back disability prevents him from working at a desk, so even at a job that is less physically demanding (i.e., sedentary). Moreover, by all accounts, his prior work experience has not been sedentary, in fact, quite the opposite. On March 14, 2019, so during the pendency of this appeal, the U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC) issued a panel decision in Ray v. Wilkie, 31 Vet. App. 58 (2019). Ray held that the term "substantially gainful employment" contains economic and noneconomic components; the economic component means "an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person," while the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. The CAVC provided guidance as to the meaning of a veteran's ability to "secure and follow" such employment, noting that attention must be given to: the Veteran's occupational history, education, skill and training; whether the Veteran has the physical ability to perform occupational activities; and whether the Veteran has the mental ability to perform occupational activities. Accordingly, this claim is REMANDED for the following action: Refer this TDIU claim to the Director of the Compensation Service for extra-schedular consideration under § 4.16(b). KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Hamm, 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.