Citation Nr: 21011570 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 12-23 738 DATE: March 2, 2021 REMANDED Entitlement to an extraschedular total disability rating based upon individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1973 to January 1976. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a February 2010 rating decision by the Department of Veteran’s Affairs (VA) Regional Office (RO) in Columbia, South Carolina. Most recently, in November 2020, the Board remanded this issue for additional development, which has been substantially completed. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to an extraschedular TDIU is remanded. The Veteran is seeking a TDIU. Specifically, he contends that he cannot obtain and maintain gainful employment due to his service-connected disabilities. See May 2010 Notice of Disagreement. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. If the schedular rating is less than total, a total disability evaluation may be assigned based on individual unemployability if a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that he has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16(a). Here, the Veteran is currently service connected for a lumbar spine disability, right lower extremity neuropathy, and right lower extremity neuropathy. He is in receipt of a combined 40 percent disability rating. Thus, the Veteran does not meet the minimum schedular criteria for a TDIU pursuant to 38 C.F.R. § 4.16(a). However, 38 C.F.R. § 4.16(b) also provides that all veterans who do not meet the schedular criteria for TDIU but are otherwise unable to secure and follow substantially gainful occupation by reason of service-connected disabilities shall be referred to the Director, Compensation and Pension Service, for consideration of an extra-schedular rating of unemployability. Although entitlement to extraschedular TDIU is determined in the first instance by the Director, Compensation Service, the RO and the Board are tasked with making the threshold determination that referral to the Director for extraschedular consideration is appropriate. That threshold determination must be supported with “a full statement as to the veteran’s service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue.” 38 C.F.R. § 4.16(b). Here, the AOJ has not submitted the Veteran’s claim to the Director of the Compensation and Pension Service for extraschedular consideration because it determined that the record fails to show that the Veteran is unemployable due to his service-connected disabilities. See December 2020 Supplemental Statement of the Case. Following a review of the record and based on the entirety of the evidence, the Board finds that referral to the Director of Compensation and Pension Service is warranted in the instant case. Specifically, in his June 2009 claim, the Veteran reported that his highest level of education is Grade School 9. A June 2009 VA treatment record shows that the Veteran worked as a carpenter but due to his back disability he is hindered from working. In a June 2011 VA examination, the examiner opined that it is at least as likely as not that the Veteran’s low back disability renders him unable to maintain gainful employment in a physical occupation. Regarding sedentary employment the Veteran would only be hindered if there were educational or training obstacles. In his May 2010 NOD, the Veteran asserted that because of his neuropathy and back pain he can barely walk or starting for long periods of time. In addition, he has asserted that he difficulty sitting and sleeping due to his back pain and is unable to hold a job. See also March 2011 Statement in Support of Claim. In an August 2019 peripheral nerves examination individual unemployment statement, the Veteran was found able to perform only light work. Based on the foregoing, the Board finds that the record contains sufficient evidence to refer the issue of entitlement to a TDIU to the Director of Compensation and Pension for extraschedular consideration. The matters are REMANDED for the following action: 1. Following preparation of the requisite full statement (as noted above), submit the Veteran’s claim for entitlement to a TDIU to the Director, Compensation Service, for extra-schedular consideration under 38 C.F.R. § 4.16(b). 2. Readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the Veteran’s satisfaction, the Veteran and his representative should be furnished a supplemental statement of the case and provided an appropriate opportunity to respond before the case is returned to the Board for further appellate action. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Kaufer, 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.