Citation Nr: 21009904 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 17-07 141 DATE: February 23, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from June 1968 to November 1977. The matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The matter was most recently before the Board in January 2019, when the Board issued a decision finding that the issue of entitlement to a total disability rating based on individual unemployability (TDIU) was not on appeal. The Veteran appealed the decision to the Court of Appeals for Veterans Claims (the Court). The parties signed a Joint Motion for Partial Remand (JMPR) that was granted by the Court, vacating the Board’s January 2019 decision, and remanding the issue to the Board for readjudication. The Veteran filed the underlying increased rating claim for ischemic heart disease (IHD) in his May 2016 Notice of Disagreement (NOD), at which time he noted that he was “additionally appealing the VA’s failure to award benefits at the 100% rate due to total unemployability (TDIU).” See May 2016 NOD. Accordingly, the Board finds that a claim for TDIU is part and parcel of the underlying increased rating claim for IHD. According to the terms of the JMPR referenced above, the Veteran requested that the Court dismiss his appeal with respect to the increased rating claim for IHD. Thus, the sole issue remaining on appeal is entitlement to a TDIU. Here, service connection is in effect for IHD and diabetes mellitus (DM). The Veteran’s combined rating is 40 percent. Accordingly, the Veteran does not meet the schedular criteria for a TDIU. Because the Veteran does not meet the minimum schedular criteria for TDIU under 38 C.F.R. § 4.16(a) for any time during the period under review, a TDIU may not be granted on a schedular basis at this time. That stated, pursuant to 38 C.F.R. § 4.16(b), when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16(a), such case shall be submitted to the Director of Compensation Services for extraschedular consideration. Here, there remains an open question as to whether the Veteran has been precluded from obtaining or maintaining a substantially gainful occupation as a result of his service-connected disabilities. The record does not reflect that the Veteran was ever asked to submit a VA Form 21-8940 Application for Increased Compensation Based on Unemployability. As it is unclear what the Veteran’s employment history includes, the issue of entitlement to TDIU must be remanded to clarify the Veteran’s employment history for the period on appeal. The Veteran underwent a VA examination in March 2011 during which the VA examiner noted that the Veteran’s IHD impacts his ability to work. The examiner reported that the Veteran stated that he was not currently working, and that if he were to work, he would not be able to tolerate physical work due to fatigue and chest pressure but would be fine with sedentary work. See March 2011 VA examination. The Veteran underwent another VA examination in November 2015 during which the examiner noted that the Veteran’s heart condition impacted his ability to work; he further noted that the impact of the heart condition on the Veteran’s ability to work is due to dyspnea. See November 2015 VA examination. While the question of whether the Veteran’s service-connected disabilities impact his ability to work was marginally addressed during both the March 2011 and November 2015 VA examinations, there are no opinions of record that fully address the impact of the Veteran’s service-connected disabilities on his ability to work. Accordingly, on remand, the Veteran should be scheduled for VA examinations to assess the current severity of the Veteran’s service-connected disabilities. The matter is REMANDED for the following action: 1. Request that the Veteran submit a TDIU application (VA Form 21-8940), or other detailed information regarding employment and income history for the years in which he claims to have been precluded from maintaining gainful employment due to a service-connected disability or disabilities. Invite the Veteran to submit additional supporting documentation including tax returns or statements from his former employers. For any employment that the Veteran considers to be marginal as due to a protected work environment, request that the Veteran provide a detailed explanation as to what factors characterize the work environment as protected. 2. Schedule the Veteran for appropriate VA examinations to assess the severity of his ischemic heart disease and diabetes mellitus and the impact these service-connected disabilities may have on his ability to work. The entire record must be made available to and be reviewed by the examiner(s). The examiner(s) should take a history from the Veteran as to the onset and progression of his service-connected disabilities. Upon review of the Veteran’s medical and occupational history, the selected examiner(s) should describe the functional impairment caused by his service-connected disabilities, to include any impact they may have on the Veteran’s ability to work. 3. Thereafter, readjudicate the Veteran’s claim for entitlement to TDIU, to include consideration as to whether the issue should be referred to the Director of Compensation Service for extraschedular consideration. If the benefit sought on appeal remains denied, the Veteran and his attorney should be issued a supplemental statement of the case. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Fulmer, 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.