Citation Nr: 21015374 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 14-06 240 DATE: March 17, 2021 REMANDED The claim of entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served honorably on active duty from January 1974 to August 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2011 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) which denied the Veteran’s claim for an increased rating for his service-connected cervical spine disability. During the course of this appeal, the Veteran alleged an inability to work due to his service-connected cervical spine disability and VA took jurisdiction of the TDIU issue pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). The TDIU issue was remanded by the Board in June 2016 for further evidentiary development. In November 2017, the Board denied a TDIU. The Veteran appealed this denial to the United States Court of Appeals for Veterans Claims (Court) and filed a Joint Motion for Remand (JMR) along with VA in January 2019. The Court ordered the remand in January 2019, and the claim was returned to the Board. In July 2019, the Board remanded the claim to the AOJ for additional evidentiary development, including obtaining a new VA examination. The claim of entitlement to a TDIU is remanded. The Veteran contends that his current service-connected disabilities prevent him from obtaining and following substantially gainful employment. See e.g., May 29, 2012 correspondence; August 24, 2012 VA 21-4138 (statement in support of claim). As was noted in the July 2019 Board remand, the November 2017 Board decision denied a TDIU, in part, because it found that the Veteran was capable of sedentary employment, noting that a July 2014 VA cervical spine examiner opined that the Veteran was able to perform limited active and sedentary work. However, in offering this discussion, the November 2017 Board decision did not explain how it interpreted the concept of “sedentary work” as used by the July 2014 VA examiner, on which it relied. Withers v. Wilkie, 30 Vet. App. 139, 147-48 (2018). The November 2017 Board decision failed to explain the concept of sedentary work in the context of this case and explain how that understanding squares with the Veteran’s educational and occupational history. Id. at 148. As the July 2014 VA examination on which the November 2017 denial was largely based does not comply with the requirements of Sharp v. Shulkin, 29 Vet. App. 26 (2016), with respect to any effects of pain on use and during flare-ups, the case was remanded to obtain a new VA examination. Pursuant to the July 2019 Board remand, the Veteran was afforded a new VA cervical spine examination in March 2020 wherein the VA examiner opined that the Veteran’s service-connected cervical spine disability impacted his ability to work, noting that the Veteran “cannot turn head to look over shoulders.” Such is medical evidence that the Veteran is potentially unable to secure and maintain substantially gainful employment. In this case, the Veteran’s service-connected disabilities presently include cervical spine disability (rated as 40 percent disabling), left clavicle fracture (rated as noncompensably disabling), left scapula fracture (rated as noncompensably disabling), left ear scar (rated as noncompensably disabling), left index finger skin graft (rated as noncompensably disabling), and headaches (rated as noncompensably disabling).  A combined disability evaluation of 40 percent is currently in effect.  Therefore, the Veteran does not currently meet the minimum schedular criteria for a TDIU.  38 C.F.R. § 4.16(a).  While the Veteran does not meet the schedular criteria for TDIU under 38 C.F.R. § 4.16(a), there is evidence showing that the Veteran is potentially unable to work due to his service-connected disabilities. 38 C.F.R. § 4.16 (b) 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 of the Compensation Service for consideration of an extra-schedular rating of unemployability. The Board is prohibited from awarding extraschedular TDIU in the first instance. Wages v. McDonald, 27 Vet. App. 233, 235-39 (2015). Accordingly, a remand is required to refer consideration of an extraschedular TDIU to the Director of Compensation Service. The matter is REMANDED for the following action: Refer the Veteran’s claim for a TDIU to the Director of Compensation Service for extraschedular consideration. APRIL MADDOX Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. M. Lowman, 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.