Citation Nr: 21015161 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 14-24 450A DATE: March 16, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from July 1969 to July 1971. This matter comes before the Board of Veterans Appeals (Board) on appeal from a November 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. This matter was previously before the Board in December 2019 and May 2018 when it was remanded to the Agency of Original Jurisdiction (AOJ) for additional development. In December 2019, the Board also remanded the issues of service connection for bilateral lower extremity radiculopathy. In a March 2020 rating decision, the RO granted service connection for bilateral lower extremity radiculopathy, which constitutes a full award of the benefits sought on appeal. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Thus, this matter is no longer in appellate status. A total disability rating for compensation purposes may be assigned on the basis of individual unemployability 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). In such an instance, 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, and sufficient additional disability must bring the combined rating to 70 percent or more. In adjudicating the issue of entitlement to a TDIU, the Board must evaluate whether there are circumstances in the Veteran’s case, apart from any non-service-connected conditions and advancing age, which would justify a TDIU. The Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. The Veteran contends he is unable to work due to his service-connected disabilities since January 2009. Here, the Veteran is service-connected for degenerative disc disease, rated 20 percent disabling from March 31, 2011; radiculopathy of the right lower extremity, rated 10 percent disabling from March 31, 2011 and 20 percent from November 17, 2020; radiculopathy of the left lower extremity, rated 10 percent disabling from March 31, 2011 and 20 percent from November 17, 2020; tinnitus, rated 10 percent disabling from January 25, 2005; chronic rhinitis and chronic sinusitis, rated noncompensable from January 25, 2005 and 10 percent from March 18, 2010; and tonsillitis rated noncompensable from July 30, 1971, 100 percent from October 37, 1971, and noncompensable from January 1, 1972. The Veteran’s combined ratings are noncompensable from July 30, 1971; 100 percent from October 27, 1971; noncompensable from January 1, 1972; 10 percent from January 25, 2005; 20 percent from March 18, 2010; 50 percent from March 31, 2011; and 60 percent from November 17, 2020. Thus, the Veteran does not meet the schedular requirements for TDIU. Concerning whether the Veteran’s claim should be referred for extraschedular consideration, the record suggests that the Veteran has not been able to work since 2009. At the October 2017 Board hearing, the Veteran’s representative noted the Veteran was found unemployable by the Social Security Administration (SSA) in June 2016. Although decisions of the SSA are not binding on VA, this evidence suggests that the Veteran may have been unable to obtain or maintain substantially gainful employment due to his service-connected disabilities, with consideration of the veteran’s background including his employment and educational history. 38 C.F.R. §§ 3.321 (b), 4.16(b). At his Board hearing, the Veteran attested that he had completed a high school education and a year of college. He reported an employment history of working as a technician fixing fax machines and printers and previously working in construction. He stated he was unable to continue working as he was unable to bend, lift, or walk more than half a block due to his service-connected conditions. The Veteran testified that he was unable to do sedentary work as well, as his back and leg pain would require him to get up every half an hour. The functional impact of the Veteran’s service-connected conditions are further corroborated by his various VA examinations. In such circumstances, VA must consider TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16 (b). The Board cannot, however, consider entitlement to 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, 9-10 (2001). Recently, the Court explained that this 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). Accordingly, to the extent that any additional development in these matters fails to produce an award of TDIU on a schedular basis for the entire appeal period, the issue of the Veteran’s entitlement to a TDIU must be remanded for referral to the Director, Compensation Service, for consideration of an extraschedular TDIU. See 38 C.F.R. § 4.16 (b). The matters are REMANDED for the following action: 1. Refer the issue of entitlement to a TDIU to the Director of Compensation and Pension Service for extraschedular consideration in accordance with 38 C.F.R. § 4.16(b). 2. Then, readjudicate the issues on appeal. If the benefit sought on appeal remains denied, issue a Supplemental Statement of the Case. After the Veteran and his representative have had an adequate opportunity to respond, return the appeal to the Board. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Javed 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.