Citation Nr: 21010358 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 09-00 115A DATE: February 24, 2021 REMANDED Entitlement to an effective date prior to August 19, 2009, for a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities on an extraschedular basis is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1976 to June 1978. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2008 rating decision. The Board remanded the issue of entitlement to a TDIU rating in October 2015, June 2018 and November 2020 for further development. While the issue of a TDIU rating was in remand status, a December 2020 rating decision granted entitlement to a TDIU rating, effective August 19, 2009. Unfortunately, the issue listed above must be remanded for further development. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide this issue, so the Veteran is afforded every possible consideration Entitlement to an effective date prior to August 19, 2009, for a TDIU rating on an extraschedular basis is remanded. In general, a TDIU rating may be assigned when a disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. The Veteran’s TDIU rating remains in effect from August 19, 2009, forward. The Board notes that the Veteran submitted a claim for entitlement to a TDIU rating on October 3, 2006. His combined disability was 30 percent from May 16, 2006 to May 15, 2007 as he was service-connected for residuals, left knee injury with instability rated as 10 percent disabling, and traumatic degenerative changes, left olecranon rated as 20 percent disabling. His combined disability rating was 50 percent from May 16, 2007 to August 18, 2009 as he was service-connected for residuals, left knee injury with instability rated as 10 percent disabling; traumatic degenerative changes, left olecranon rated as 20 percent disabling; and right shoulder supraspinatus tendon, infraspinatus tendinosis with acromioclavicular joint osteoarthritis rated as 20 percent disabling. Therefore, the Veteran does not satisfy the minimum percentage rating requirements of 38 C.F.R. § 4.16(a) for a TDIU rating prior to August 19, 2009. However, VA regulations provide that if a veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), rating boards should refer to the Director of Compensation and Pension Service for extraschedular consideration all cases where the veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b); see Fanning v. Brown, 4 Vet. App. 225 (1993). Only after the Director has determined whether an extraschedular evaluation is warranted does the Board have jurisdiction to decide the merits of the extraschedular aspect of the TDIU rating. The evidence contained in the Veteran’s claims folder reasonably raises the possibility that the Veteran could not work due to his service-connected residuals, left knee injury with instability, traumatic degenerative changes of the left olecranon, and right shoulder supraspinatus tendon, infraspinatus tendinosis with acromioclavicular joint osteoarthritis, prior to August 19, 2009. Thus, the Board refers the issue of a TDIU rating prior to August 19, 2009 to the Under Secretary for Benefits or Director of Compensation and Pension Service for an extraschedular evaluation under 38 C.F.R. § 4.16(b). The matter is REMANDED for the following action: Refer the issue of entitlement to a TDIU rating prior to August 19, 2009 to the Director, Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 4.16(b). P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sean Mussey, 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.