Citation Nr: 21011120 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 11-25 483 DATE: March 1, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) prior to February 29, 2008, on an extraschedular basis, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from January 1969 to December 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2008 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before Board in January 2018 and February 2020, and was remanded for additional development, which has been completed. The Veteran was offered the opportunity to appear for a hearing before the Board; however, he withdrew his hearing request in October 2020. As a preliminary matter, the Board notes the Veteran has been rated as 100 percent disabling from February 29, 2008 for persistent depressive disorder, as secondary to the service-connected disabilities of the lumbar spine and right knee associated with low back strain, degenerative joint disease. The Veteran has also been in receipt of special monthly compensation from August 10, 2009. This is the only issue on appeal. The Veteran contends that he is entitled to a total disability rating prior to February 29, 2008, for TDIU benefits. TDIU may be assigned when the 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. 38 C.F.R. § 4.16 (a). Prior to February 29, 2008, the Veteran was service connected for the following: • Low back strain, degenerative joint disease rated as 40 percent disabling. • Residual post-operative injury, right knee, with arthritis associated with low back strain, degenerative joint disease, rated as 10 percent disabling. The Veteran’s combined evaluation for compensation was rated at 50 percent. Accordingly, he did not meet the schedular requirements for a TDIU prior to February 29, 2008. Therefore, entitlement to a TDIU would have to be awarded on an extraschedular basis prior to February 29, 2008. If the Veteran fails to meet the threshold minimum percentage standards enunciated in 38 C.F.R. § 4.16 (a), rating boards should refer to the Director of Compensation 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). The Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue would be addressed if such a referral was made. 38 C.F.R. § 4.16 (b). The Board cannot assign an extraschedular evaluation in the first instance. Rather, the Board’s analysis is limited to merely granting or denying the Veteran’s request for referral to the Director of Compensation Service for TDIU on an extraschedular basis prior to February 29, 2008. Wages v. McDonald, 27 Vet. App. 233 (2015); Anderson v. Shinseki, 22 Vet. App. 423, 428-29 (2009); Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Once a referral for an extraschedular rating under § 4.16 (b) is made by the Board, if, and only if, the appropriate official has determined that an extraschedular evaluation under § 4.16 (b) is not warranted does the Board have jurisdiction to decide the claim on the merits when it returns. Accordingly, the Board must make the initial determination as to whether referral to the Director of Compensation Service is appropriate for an extraschedular evaluation under § 4.16 (b) prior to February 29, 2008. As such, the only remaining question in this case is whether there is plausible evidence the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, for purposes of a possible extraschedular TDIU evaluation prior to February 29, 2008. 38 C.F.R. § 4.16 (b). The record indicates that the Veteran has not engaged in substantially gainful employment prior to February 2008, as the Veteran stopped working without notice in June 2004. See April 2008 VA Form 21-4192. Moreover, a VA Readjustment Counseling Therapist opined that the Veteran is more likely than not unemployable. See January 2009 Ravenna VA Clinic Correspondence. The therapist noted the Veteran had difficulty managing stress due to his chronic pain which significantly impacts his interpersonal relationships and his ability to obtain and maintain employment. See id. Furthermore, the therapist noted the Veteran’s documented history of degenerative disc disease of his lumbar spine and that he suffers from chronic pain which impacts his mood and leads to his inability to participate in everyday physical activities and previous leisure activities. See id. The Board finds there is some plausible evidence of unemployability prior to February 29, 2008. Therefore, the Board finds that a remand is required for the Director of Compensation Service to determine if an extraschedular rating prior to February 29, 2008, is warranted for a TDIU under 38 C.F.R. § 4.16 (b). Although the Board sincerely regrets the additional delay caused by a remand, the Board is precluded from assigning an extraschedular TDIU in the first instance. See 38 C.F.R. § 4.16 (a). The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records. 2. After obtaining all needed authorizations from the Veteran, associate with the claims file any outstanding private treatment records. If possible, the Veteran himself should submit and new pertinent evidence the Board/VA does not have (if any). 3. Refer the claim for a TDIU to the Director, Compensation Service, for extra-schedular consideration. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Laura Cochran, 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.