Citation Nr: 21013071 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 11-32 513 DATE: March 8, 2021 REMANDED Entitlement to an extraschedular rating for residuals, left (minor) shoulder acromioplasty is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1969 to August 1973. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a February 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In an August 2015 Board decision, the Board increased the Veteran’s 20 percent rating to 30 percent for residuals, left (minor) shoulder acromioplasty. The Veteran subsequently appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In April 2016 the Court issued an order approving a Joint Motion for Partial Remand of the parties to vacate the Board’s decision regarding the issue of residuals, left (minor) shoulder acromioplasty on an extraschedular basis, and to remand that issue back to the Board, consistent with the terms of the Joint Motion for Partial Remand. When this case was most recently before the Board in December 2019, it was remanded for additional evidentiary development. It has since been returned to the Board for further appellate action. The Board notes that a hearing was held in April 2015 before a Veterans Law Judge who has since retired, and the Veteran indicated in November 2019 that he did not want to appear at another hearing. A transcript of the hearing is of record. Prior to the adjudication of the Veteran’s claims of appeal, the Board finds that additional development should have been conducted on his TDIU claim, namely referral to the Director of Compensation Services for extraschedular consideration. Here, the Board notes that it is precluded from granting the same in the first instance. See Anderson v. Shinseki, 23 Vet. App. 423 (2009). While the Veteran does not currently meet schedular for a TDIU, the most probative evidence of record shows that his service-connected left shoulder disability functionally impairs his ability to work. See June 2019 VA medical opinion. To point, the VA examiner stated relative to the Veteran’s left shoulder, he would have great difficulty working in a job that required overhead work using 2 arms. During the June 2019 VA examination, the Veteran stated that he cannot lift heavy objects, work overhead, or drive for long periods of time. These statements made by the Veteran are corroborated by letters submitted in support of his TIDU claim from former employers indicating that the Veteran could no longer work for the employers due to the physical limitations caused by the left shoulder. See September 2015 Statement in Support of Claim. Lastly, the Veteran’s September 2015 VA Form 21-8940 indicates that he is currently unemployed and has not worked full-time since 2005. See also June 2011 Notice of Disagreement. As such, the Board finds that extraschedular consideration is warranted on the Veteran’s TDIU claim. Given the Federal Circuit's holding in Johnson v. McDonald, 762 F.3d 1362, 1365-6 (2014)(where the Court indicated that the grant of a TDIU renders moot the issue of entitlement to an extraschedular rating because the regulatory gap that 38 C.F.R. § 3.321 (b)(1) is designed to fill does not exist when TDIU has been granted), the Board will defer deciding the Veteran’s increased rating claim, pending extraschedular consideration on his TDIU claim, as the grant of a TDIU upon remand would in turn render the former moot. Id. The matters are REMANDED for the following action: 1. Submit the issue of entitlement to a TDIU, to the Veteran to the Director of Compensation Service, for consideration of whether TDIU on an extraschedular basis is warranted in accordance with the provisions of 38 C.F.R. § 4.16 (b). 2. If the determination of the issue on appeal remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case. The Veteran and his representative should be afforded the applicable time period in which to respond. Thereafter, the case should be returned to the Board for appellate review. R. M. KELLY Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.R. Fey, 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.