Citation Nr: 21021524 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 17-15 137 DATE: April 13, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU), including on an extraschedular basis, is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1983 to February 1986. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the matter in June 2018 and December 2020. The Veteran testified at a hearing before the undersigned Veterans Law Judge in June 2018. A transcript of the hearing is of record. Entitlement to TDIU on an extraschedular basis is remanded. The percentage requirements for schedular entitlement to TDIU are not currently met. See 38 C.F.R. § 4.16(a). The Veteran’s service-connected back disability is assigned a 40 percent rating, and his service-connected radiculopathy is assigned a 10 percent rating. The combined total rating is 50 percent. He has no other disabilities for which service connection has been established at this time. As he does not have a service-connected disability rated at 60 percent or more, or a combined rating of 70 percent or more, the percentage requirements are not satisfied. Id. When the schedular requirements for TDIU are not satisfied, but the veteran is still found to be unable to work due to service-connected disabilities, the case will be submitted to the Director of the Compensation Service (Director) for extra-schedular consideration. 38 C.F.R. § 4.16(b). In its December 2020 remand, the Board found that the evidence suggested that the Veteran’s back disability may cause unemployability, and therefore remanded the matter for referral to the Director for extra-schedular consideration. In a January 2021 decision, the Director denied TDIU on an extraschedular basis. The Board reviews the Director’s extraschedular determination de novo, and therefore is not bound by it. Kuppamala v. McDonald, 27 Vet. App. 447, 458 (2015). As indicated in its December 2020 remand, the Board has not made a finding as to whether the Veteran’s service-connected disabilities cause unemployability. The Board finds that at this juncture, further development of the record is necessary to make an informed decision. More specifically, a new VA examination is warranted. The last examination was performed in August 2018, and is now nearly three years old. Moreover, the August 2018 examination report does not provide sufficient information on the impacts of the Veteran’s back disability on occupational functioning. The examiner stated that the Veteran’s limited range of motion of the spine would “negatively affect” his ability to perform physical labor and sedentary work, as he was unable to stand or sit for prolonged periods without back pain. No further detail was provided. The fact that the Veteran’s back disability causes occupational impairment by “negatively affect[ing]” his ability to perform physical or sedentary work does not necessarily equate to unemployability. More specific information is needed as to how his back disability affects his ability to perform possible occupational tasks or activities such as bending, lifting, pushing, pulling, standing, sitting, and walking. The Board notes that although the Veteran has an occupational history working as a carpenter, the record indicates that his occupational and educational background does not necessarily preclude less physically intensive work, including light or sedentary work. In this regard, his April 2016 application for Social Security disability benefits reflects that his work history includes a year of full time work as a construction supervisor, in which role he sat for four hours, stood for two hours, and walked for two hours in a given workday. He did tasks such as writing, typing, or handling small objects for three hours in a given day. The heaviest weight he lifted in that job was less than 10 pounds. Accordingly, a more thorough discussion by the examiner as to how the Veteran’s back disability and radiculopathy currently affect his ability to perform such tasks will aid in making an informed decision. The matter is REMANDED for the following action: 1. Add to the file any outstanding VA treatment records pertaining to the Veteran dated since July 2020. 2. Arrange for a new VA examination to assess the severity of the Veteran’s back disability and radiculopathy of the left lower extremity and the impact of these disabilities on his occupational functioning. A thorough examination must be conducted. The claims file must be made available to the examiner for review. The examiner must specifically discuss how the Veteran’s back disability and radiculopathy affect his ability to bend, lift objects weighing 10 pounds or less, push, pull, crouch, kneel, climb ramps/stairs, climb ladders, stand, sit, and walk, providing as much detail as possible. In particular, the examiner should state how many hours the Veteran would be expected to be able to sit, how many hours he would be able to stand, and how many hours he would be able to walk in an 8-hour workday. The examiner must provide a complete explanation in support of the findings. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Rutkin, 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.