Citation Nr: 21012551 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 16-33 418 DATE: March 4, 2021 REMANDED 1. Entitlement to an effective date prior to February 4, 2019 for the grant of a total disability rating for compensation based on individual unemployability (TDIU) is remanded. 2. Entitlement to an increased rating in excess of 30 percent for degenerative joint disease of the left ankle status post arthrodesis is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from February 1951 to January 1953. The Veteran testified at a virtual Board of Veterans’ Appeals (Board) hearing before the undersigned Veterans Law Judge in December 2020. A copy of the hearing transcript has been associated with the claims file. 1. TDIU The law provides that a TDIU rating may be granted upon a showing that the veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or his age or the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The United States Court of Appeals for Veterans Claims (CAVC) has indicated that the unemployability question, or the veteran's ability or inability to engage in substantial gainful activity, has to be looked at in a practical manner and that the crux of the matter rests upon whether a particular job is realistically within the capabilities, both physical and mental, of the appellant. See Moore v. Derwinski, 1 Vet. App. 356 (1991). The central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). To qualify for a total rating for compensation purposes, the evidence must show (1) a single disability rated as 100 percent disabling; or (2) that the disabled person is unable to secure or follow a substantially gainful occupation as a result of his or his service-connected disabilities, with one disability ratable at 60 percent or more, or, for more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent or more. 38 C.F.R. § 4.16(a). Veterans who are unable to secure gainful employment by reason of service-connected disabilities, but fail to meet the percentage criteria in 38 C.F.R. § 4.16(a), may receive extraschedular consideration. See 38 C.F.R. § 4.16(b). Specifically, rating boards should submit to the Director of Compensation Service for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). Id. The rating board will include a full statement as the veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue. Id. The Veteran is currently service-connected for left ankle degenerative joint disease status post arthrodesis (rated as 20 percent disabling from November 20, 2008; and 30 percent disabling from June 1, 2010; and with a temporary 100 percent disability rating from February 3, 2010 through May 31, 2010), tinnitus (rated as 10 percent disabling from September 28, 2004), and bilateral hearing loss (rated as 10 percent disabling from September 28, 2004; as 40 percent disabling from October 11, 2007; and 50 percent disabling as of February 4, 2019). Thus, the Veteran's combined disability rating is 20 percent from September 28, 2004, 50 percent from October 11, 2007, 60 percent from November 20, 2008, and 70 percent from February 4, 2019 (with a temporary 100 percent disability rating from February 3, 2010 through May 31, 2010). As such, he meets the threshold criteria for consideration of a TDIU rating from February 4, 2019, but no sooner. See 38 C.F.R. § 4.16(a). Notably, however, the failure to meet the schedular percentage requirements does not preclude the availability of a TDIU rating on an extraschedular basis under 38 C.F.R. § 4.16(b). The Veteran was awarded TDIU on February 4, 2019, based on the award date of an increased rating for the service-connected bilateral hearing loss disability, which allowed the Veteran to meet the schedular requirements for TDIU consideration under 38 C.F.R. § 4.16(a). The Veteran filed his original TDIU application in October 2013, in which he reported that he became unemployable in 2008 due to his service-connected hearing loss and ankle disabilities. His claim was denied in a March 2014 rating decision. He has submitted timely appeals since that time, maintaining that he was unemployable due to his multiple service-connected disabilities. His original TDIU claim was still pending at the time of the regional office's award of TDIU in March 2019. The regional office did not address the complete appeal period for TDIU prior to February 4, 2019. The Board is mindful that the Veteran has consistently reported that he last worked as a bus driver in 2008 and was precluded from continued employment due to his disabilities. Additionally, schedular TDIU was granted as of February 4, 2019, when the only discernable worsening of the Veteran’s condition at the time related to a 10 percent increase in the Veteran’s bilateral hearing loss disability rating. It was not explained how the Veteran became unemployable as of this date. As such evidence suggests that the Veteran was unemployable due to his service-connected disabilities prior to February 4, 2019, remand of the Veteran's claim of entitlement to TDIU rating prior to February 4, 2019 is warranted for referral to the Director of Compensation Service for extraschedular consideration. See 38 C.F.R. § 4.16(b). The Board cannot assign an extraschedular rating in the first instance. See Floyd v. Brown, 9 Vet. App. 88 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996). If, and only if, the Director determines that an extraschedular evaluation is not warranted, does the Board then have jurisdiction to decide the extraschedular TDIU claim on the merits. See Anderson v. Shinseki, 22 Vet. App. 423 (2009). 2. Entitlement to an increased rating for degenerative joint disease of the left ankle in excess of 30 percent At the December 2020 Board hearing, the Veteran alleged that his left ankle disability has worsened overall with increased pain and decreased functioning. The Veteran’s most recent VA examination of the left ankle occurred nearly five years ago in April 2016. VA regulations specifically require the performance of a new medical examination when evidence indicates there has been a material change in a disability or that the current rating may be incorrect. Therefore, the Board finds that remand is warranted to afford the Veteran an opportunity to undergo a VA examination to assess the current nature, extent, and severity of his bilateral hearing loss disability. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); 38 C.F.R. § 3.327. The matters are REMANDED for the following action: 1. Refer the Veteran's claim of entitlement to a TDIU rating prior to February 4, 2019 to the Director of Compensation Service for consideration of TDIU on an extraschedular basis. Include 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. See 38 C.F.R. § 4.16(b). 2. Schedule the Veteran for a VA examination with an appropriate clinician to determine the current severity of the Veteran’s left ankle degenerative joint disease. The claims file should be made available for review by the VA examiner. All appropriate testing should be accomplished, and all clinical findings should be reported. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Wonderling, 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.