Citation Nr: 21007780 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 16-10 989 DATE: February 10, 2021 REMANDED Entitlement to a total disability based upon individual unemployability (TDIU) on an extraschedular basis prior to February 19, 2016 is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1977 to May 1984. This appeal was previously before the Board in January 2020, at which time the Board remanded the issues of entitlement to service connection for sleep apnea, and entitlement to a TDIU. Entitlement to service connection for sleep apnea was granted by the VA Appeals Management Center in a July 2020 rating decision. The Veteran has not disagreed with that decision and the issue is no longer in appellate status. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). In December 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge via video conference. A transcript of the hearing is associated with the claims file. The Board notes an August 2020 VA Form 21-0820 indicated that the Veteran wished to file a higher-level review claim for benefits. A VA Form 20-0996 was sent to the Veteran informing him that the prescribed form is required to initiate a claim for this benefit. However, as Veteran did not submit the requested form his appeal remains in the legacy system. Entitlement to a TDIU on an extraschedular basis prior to February 19, 2016 is remanded. The Veteran’s representative has asserted TDIU on an extraschedular basis is warranted prior to February 19, 2016. During the Board hearing, the Veteran’s representative argued that a TDIU rating is warranted from December 2008. The Board notes the Veteran’s service-connected disabilities do not meet the schedular criteria for entitlement to a TDIU under 38 C.F.R. § 4.16(a) prior to February 19, 2016 but the evidence of record raises a question as to whether the functional impairment caused by his service-connected pulmonary sarcoidosis with obstructive sleep apnea and posttraumatic stress disorder renders him unemployable since the date of receipt of his claim, i.e., December 18, 2009. During the hearing, the Veteran testified that he installed pools for a living which was a physically demanding job. A December 2008 VA examination shows that the Veteran started on home oxygen therapy in October 2008; he experienced continued shortness of breath when standing for more than 3 to 5 minutes and limitations walking more than one half block or when climbing more than 5 steps. A November 2010 VA examination reflects the Veteran was precluded from work because of physical issues. A May 2012 VA examination reflects that he experienced significant depressed mood, loss of interest, low energy, and increased fatigue; he requires use of oxygen every day for 6 to 8 hours a day. An August 2016 VA examination shows that the Veteran is unable to perform physical labor; he wears oxygen continuously; he can only walk short distances; and he is unable to do any heavy lifting. Therefore, consideration must be given to whether the Veteran’s is entitled to TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b) prior to February 19, 2016. Because the Board cannot award a TDIU under 38 C.F.R. § 4.16(b) in the first instance, a remand is required in order for the AOJ to submit the claim to the Director of the Compensation and Pension Service for extraschedular consideration. The matters are REMANDED for the following action: Refer this case to the Director, Compensation Service, for consideration of assignment of an extra-schedular TDIU under the provisions of 38 C.F.R. § 4.16(b) prior to February 19, 2016. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Aston, 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.