Citation Nr: 21024156 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 16-34 017 DATE: April 22, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1975 to June 1979 and from July 1981 to September 1992. This matter is on appeal from a May 2015 decision of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2018, a hearing was held before the undersigned. A transcript of the hearing is in the record. The case was previously before the Board in June 2019 and September 2020 when it was remanded for further development. Entitlement to TDIU is remanded. The Veteran contends that he is unable to secure or follow substantially gainful employment due to his service-connected disabilities.   Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the Veteran 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. §§ 3.340, 3.341, 4.16(a). If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more 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 this case, the Veteran has been assigned the following non-total rated service-connected disabilities: left knee degenerative arthritis, rated at 20 percent prior to May 15, 2018 and 30 percent from July 1, 2019; lumbar strain rated at 20 percent; an acquired psychiatric disorder rated at 20 percent; tinnitus rated at 10 percent; left ankle traumatic arthritis rated at 10 percent; bilateral hearing loss rated as noncompensable; hemorrhoids rated as noncompensable; and bilateral tinea pedis rated as noncompensable. The Veteran does not have one disability rated as 60 percent or more, or one disability rated at 40 percent or more with additional disability to bring the combined rating to 70 percent. Additionally, from May 15, 2018 to June 30, 2019, the Veteran has a 100 percent temporary rating for his left knee disability; therefore, during that period, the Veteran’s other disabilities would need to meet the schedular criteria for TDIU for entitlement to TDIU under § 4.16(a), and they do not meet those criteria during that time period. Bradley v. Peake, 22 Vet. App. 280 (2008). As such, the Veteran does not meet the requirements for a schedular TDIU during the appeal period. Regulations provide that if the above-mentioned percentage requirements for TDIU on a schedular basis are not met, TDIU may still be granted on an extraschedular basis in exceptional cases when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b). If a Veteran fails to meet the schedular criteria and is unable to secure or follow a substantially gainful occupation by reason of service-connected disability, the case should be referred to the Director of Compensation Service for extraschedular consideration. Id. In this case, the Veteran reported during the December 2018 hearing that he had been working in a warehouse until 2006 when he left due to his service-connected back disability. The Veteran was provided with VA examinations in December 2020 in which an examiner noted that due to the Veteran’s service-connected left ankle and lumbar disabilities the Veteran “cannot bend, pick up heavy items from the floor, sit, or stand for too long” and cannot run. He noted that the Veteran’s hemorrhoids cause him to be unable to sit without pain and that he has itching sometimes. He also experienced itching and pain in the feet and toes sometimes due to tinea pedis. Another examiner noted that with regard to the Veteran’s acquired psychiatric disorder, the functional impairment “would be expected to cause the Veteran to suffer from the corresponding functional deficits in [both] sedentary and/or physical type occupational settings” due to moderate impairment in his ability to complete work and work cooperatively with others. This evidence indicates that the Veteran’s unemployment may be attributable to his service-connected disabilities. However, the Board is prohibited from assigning a TDIU on an extraschedular basis in the first instance without ensuring that the claim is referred to VA’s Director of Compensation Service for such consideration. Bowling v. Principi, 15 Vet. App. 1 (2001). As such, this matter is referred to the Director of Compensation Service for consideration as to whether a TDIU is warranted. The matters are REMANDED for the following action: Refer the Veteran’s claim for entitlement to a TDIU to the Director of Compensation Service for an opinion as to whether the Veteran’s service-connected disabilities render him unable to secure and follow a substantially gainful occupation, pursuant to § 4.16(b). M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. H. White, 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.