Citation Nr: 21014698 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 15-14 757A DATE: March 15, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1976 to October 1979 and again from January 5, 2002 through January 20, 2002. He also had additional service in the National Guard. This matter initially came before the Board of Veteran’s Appeal (Board) on appeal from a June 2014 rating decision by the Department of Veteran’s Affairs (VA) Regional Office (RO). In that decision, the RO, among other things, denied the Veteran’s claim for an increased rating for left shoulder arthritis. In October 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In June 2019, the Board found that the issue of entitlement to a TDIU was raised as part and parcel of the increased rating claim pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board remanded the issue of entitlement to a TDIU to the agency of original jurisdiction (AOJ) to develop and adjudicate this matter, to include sending the Veteran the formal TDIU application form (VA Form 21-8940). The AOJ complied with the Board’s remand instructions by sending the form, which the Veteran completed. The AOJ also issued a June 2019 rating decision denying the formal claim for a TDIU. That claim is separate from the issue of entitlement to a TDIU that was inferred from the claim for an increased rating for left shoulder arthritis. Harper v. Wilkie, 30 Vet. App. 356, 361-62 (2018) (confirming that when the issue of entitlement to a TDIU is raised as part and parcel of a rating claim, it should be treated separately from a formal claim for TDIU in all aspects of the appeal). The AOJ issued a supplemental statement of the case (SSOC) reflecting the denial of entitlement to the TDIU that was inferred from the claim for an increased rating for left shoulder arthritis. Entitlement to a TDIU A TDIU is provided where the combined schedular evaluation for service-connected disabilities is less than total, or 100 percent. 38 C.F.R. § 4.16 (a). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded from obtaining or maintaining any gainful employment, due to his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341. 4.16. Under 38 C.F.R. § 4.16 (a), if there is only one such disability, it must be rated at 60 percent or more to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16 (a). In an application for Increased Compensation Based on Unemployability (VA Form 21-8940) dated October 1, 2018 and submitted in March and June 2019, the Veteran indicated that he had been unemployed since March 2014, after working as a lot associate with a home improvement store, and had four years of high school and no college. The Veteran testified during the Board hearing that he cannot keep a job because of his left shoulder disability. The Veteran is service-connected for the following disabilities: post traumatic arthritis of the left shoulder, evaluated at 30 percent disabling from April 22, 2015, bilateral hearing loss evaluated at 10 percent disabling from October 21, 2011, and bilateral tinnitus evaluated at 10 percent disabling from October 21, 2011. Thus, the Veteran’s combined disability rating does not satisfy the threshold minimum percentage to meet the schedular criteria for a TDIU pursuant to 38 C.F.R. § 4.16 (a). Even where a Veteran does not meet the schedular criteria of 38 C.F.R. § 4.16 (a), VA must consider whether TDIU is warranted on an extraschedular basis under 38 C.F.R. § 4.16 (b). However, the Board cannot consider entitlement to a TDIU under 38 C.F.R. § 4.16 (b) in the first instance, but must first remand the claim for referral to VA’s Director of Compensation Service if such consideration is warranted. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Although the holding of Bowling has been questioned, see Wages v. McDonald, 27 Vet. App. 233, 239-240 (2015) (Kasold, C.J., concurring) (“The Bowling holding was rendered with little analysis of 38 C.F.R. § 4.16 (b) or its interplay with the statutory scheme for adjudicating claims, which requires decisions of an agency of original jurisdiction to be appealed to the Board and final decisions to be rendered to the Board, see 38 U.S.C. §§ 7104 and 7105. Frankly, Bowling appears to be wrongly decided”), the Court recently declined to address whether it should be overruled. See Stafford v. Wilkie, No. 18-4520, 2020 U.S. App. Vet. Claims LEXIS 662 (Apr. 15, 2020) (nonprecedential panel Order) (dismissing the appeal as moot) and id., slip op. at 2 (Greenberg, J., dissenting) (“What evil lurks behind the Court deciding whether Bowling v. Principi, 15 Vet. App. 1 (2001) remains good law?”). However, as Bowling remains good law, the Board cannot decide entitlement to a TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16 (b) in the first instance. In determining whether remand is warranted, the initial extraschedular referral decision under § 4.16 (b) should address whether there is “sufficient evidence to substantiate a reasonable possibility that a Veteran is unemployable by reason of his or her service-connected disabilities.” Ray v. Wilkie, 31 Vet. App. 58, 66 (2019). Given the Veteran’s limited education and occupational history as noted above and the evidence including his testimony that his left shoulder disability prevents him from working, the Veteran meets this standard. In this regard, the Board notes that whether a veteran could perform the physical and mental acts required by employment at a given time is an issue about which a lay person may provide competent evidence. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (“neither the statute nor the relevant regulations require the combined effect [of disabilities] to be assessed by a medical expert”). Consequently, a remand for referral to the Director of Compensation for consideration of a TDIU on an extraschedular basis is warranted. The matter is REMANDED for the following action: Refer the issue of entitlement to a TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16 (b) to the Director of Compensation Service. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Henderson, 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.