Citation Nr: 21021632 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 06-04 649 DATE: April 13, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to February 20, 2004 is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from July 1964 to August 1968. The origin of this appeal arises from a January 2006 rating decision, which granted service connection for a left shoulder disability and assigned a 20 percent rating effective November 8, 1999, as well as a September 2010 rating decision, which increased the disability rating for a neurologic bladder disability to 60 percent effective July 15, 2010. In April 2017, the Board of Veterans’ Appeals (Board) granted a 40 percent rating for the neurogenic bladder disability from February 20, 2003, denied a disability rating in excess of 60 percent for the neurologic bladder disability from July 15, 2010, and denied a disability rating in excess of 20 percent for the left shoulder disability from November 8, 1999. The Veteran appealed the April 2017 Board decision to the United States Court of Appeals for Veterans Claims (CAVC or Court), which determined that the Board did not consider entitlement to TDIU prior to February 20, 2004, pursuant to Rice v. Shinseki, 22 Vet. App. 477 (2009). The April 2017 Board decision was vacated in part and remanded pursuant to a Joint Motion for Remand (JMR). See October 2017 CAVC Decision. In July 2018, the Board denied entitlement to a TDIU prior to February 20, 2004. The Veteran appealed this decision to the Court, which vacated and remanded the decision in February 2019, pursuant to another JMR. In August 2019, the Board denied the claim once again. The Veteran appealed this decision to the Court, which vacated and remanded the claim in August 2020, pursuant to a JMR. Entitlement to a TDIU prior to February 20, 2004 is remanded. The Veteran has been awarded a TDIU from February 20, 2004, the date that he met the schedular criteria for a TDIU rating. Prior to February 20, 2004, the Veteran was service connected for a left shoulder disability (arthritis), rated at 20 percent disabling, and neurogenic bladder, rated noncompensable prior to February 20, 2003, and 40 percent from February 20, 2003. As such, gor the period prior to February 20, 2004, the combined schedular rating criteria for consideration of TDIU under 38 C.F.R. § 4.16(a) are not met because the Veteran did not have a single service-connected disability rated at least 60 percent or a combined schedular rating of at least 70 percent. Nevertheless, the Board must consider whether the evidence otherwise warrants a referral to the Director of Compensation Service for consideration of the Veteran’s entitlement to a TDIU prior to February 20, 2004 under the provisions of 38 C.F.R. § 4.16(b). The evidence indicates that the Veteran’s left shoulder and neurogenic bladder disabilities may have prevented him from performing both the mental and physical acts required for substantially gainful employment during the period prior to February 20, 2004. With respect to limitations due to his left shoulder disability, a March 1999 medical record noted that the Veteran’s shoulder problems interfered with lifelong career capabilities. See also November 1999 VA Medical Treatment Record. With respect to the Veteran’s bladder condition, it was noted that the Veteran suffered from urethritis and dysuria for years. See February 2000 VA Examination. The Veteran reported that he had to wear pads more often due to has condition. The Veteran expressed that during the day he was constantly voiding. See March 2003 Correspondence. The Veteran noted that he continuously had to use the restroom. He estimated that he had to go to the restroom around ten times during an eight-hour shift. See May 2018 statement attached to VA Form 21-8940. On the May 2018 VA Form 21-8940 (Veterans Application for Increased Compensation), the Veteran reported that he last worked full time in 1978. He reported that was the date he became too disabled to work. The Veteran reported completing up to two years of college, receiving an associate degree in Political Science in the 1970s or 1980s. He reported leaving his last job as a Treatment Assistant due to his disability. In a vocational assessment conducted in May 2018, a vocational consultant opined that it is more likely than not that the Veteran was unable to secure and follow substantially gainful employment since 1997, as a result of his left shoulder condition and neurogenic bladder. It was explained that the Veteran’s pain, fatigue, and need for frequent restroom breaks prevented him from remaining focused and attentive to work. The vocational consulted noted that that the Veteran needed to take frequent restroom breaks when he worked as an industrial cleaner and a treatment assistant/psychiatric aide around 1971 and 1972. Considering the Veteran’s limitations due to his disabilities, in conjunction with his educational background and employment history, the evidence does indicate that the Veteran’s left shoulder disability and neurogenic bladder may have rendered him unable to secure or follow substantially gainful employment prior to February 20, 2004. Where there is plausible evidence that a claimant seeking extraschedular TDIU is unable to secure or follow a substantially gainful occupation and there is no affirmative evidence to the contrary, the Board is required to remand the claim for referral to the Director of Compensation Service for consideration of entitlement on an extraschedular basis. Bowling v. Principi, 15 Vet. App. 1 (2001). Therefore, The Veteran’s claim for a TDIU prior to February 20, 2004 is remanded and referred to VA’s Director of Compensation Service for consideration under 38 C.F.R. § 4.16(b). The matter is REMANDED for the following action: 1. Refer the issue of entitlement to a TDIU prior to February 20, 2004 to the Director of the Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 4.16(b). 2. After completing the above, and any other development deemed necessary, readjudicate the TDIU claim for the period prior to February 20, 2004. If the benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC) and an adequate opportunity to respond. Thereafter, return the matter to the Board for further adjudication, if otherwise in order. J. Ragheb Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Middleton, 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.