Citation Nr: 21008760
Decision Date: 02/18/21	Archive Date: 02/18/21

DOCKET NO. 07-36 875
DATE: February 18, 2021

REMANDED

Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded.

REASONS FOR REMAND

The Veteran had active service in the U.S. Army from October 1986 to November 1988.  This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2006 rating decision.

The procedural history of this case is lengthy.  It was most recently remanded for additional development in January 2019 and September 2020.

Unfortunately, the Board finds that an additional remand is warranted.

A TDIU may be assigned where the schedular rating is less than total, when it is found that the claimant is unable to secure or follow a substantially gainful occupation because of a single service-connected disability ratable at 60 percent or more, or because of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more.  38 C.F.R. §§ 3.340, 3.341, 4.16(a).

The Veteran is service-connected for gastroesophageal reflux disease (GERD); lumbar spine degenerative disc disease (DDD) and intervertebral disc syndrome (IVDS); and right leg radiculopathy. His combined rating during the appeal period ranged from 30 percent to 40 percent, and therefore he does not meet the schedular criteria for a TDIU.  Nevertheless, a TDIU may still be available on an extraschedular basis if the Veteran is unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities. 38 C.F.R. § 4.16(b).

In that regard, the evidence shows the Veteran’s occupational history consists of landscaping and lawn mowing.  Although he reported being self-employed during parts of the appeal period, he indicated he earned no more than $10,000.00 (achieved in 2016).  This level of income falls below the relevant poverty thresholds, and therefore the Veteran was not gainfully employed within the meaning of the TDIU regulations.

In addition, there is competent medical evidence from VA examinations and outpatient records that his back pain reduces, or otherwise causes difficulty with, activities such as prolonged walking, standing and sitting, as well as bending, lifting and twisting.  During a March 2016 VA examination, he asserted that back pain does not allow him to perform manual labor.

Based on this evidence, the issue of entitlement to an extraschedular TDIU has been reasonably raised by the record, and therefore the Veteran’s claim for TDIU is being remanded and referred to VA’s Director of Compensation Service for extraschedular consideration.

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The matter is REMANDED for the following action:

Refer the Veteran’s claim for TDIU to VA’s Director of Compensation Service for extraschedular consideration.

 

 

JOHN Z. JONES

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	Shamil Patel, 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.