Citation Nr: 21024275 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 15-31 869 DATE: April 22, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) prior to June 21, 2010 on an extraschedular basis is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from September 1978 to March 2000. This appeal comes before the Board of Veterans’ Appeals (Board) from a June 2020 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2018, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is available in the record. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to June 21, 2010 on an extraschedular basis is remanded. The Veteran contends prior to June 21, 2010 he was unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. See Appellate Brief. TDIU may be assigned 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). 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, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). The Veteran was service connected for the following: • Tinnitus, rated as 10 percent disabling from March 30, 2000. • Arthritis of the cervical spine, rated as 10 percent disabling from March 30, 2000. • Herniated nucleus pulposus L4-L5, rated as 20 percent disabling from March 30, 2000. Prior to June 21, 2010, the Veteran’s total combined disability rating was 40 percent effective March 30, 2000. Accordingly, prior to June 21, 2010, he does not meet the schedular requirements for a TDIU. Therefore, entitlement to a TDIU would have to be awarded on an extraschedular basis. If the Veteran fails to meet the threshold minimum percentage standards enunciated in 38 C.F.R. § 4.16 (a), rating boards should refer to the Director of Compensation Service for extraschedular consideration all cases where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16 (b). The Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue would be addressed if such a referral was made. 38 C.F.R. § 4.16 (b). The Board cannot assign an extraschedular evaluation in the first instance. Rather, the Board’s analysis is limited to merely granting or denying the Veteran’s request for referral to the Director of Compensation Service for an earlier effective date for TDIU on an extraschedular basis prior to June 21, 2010. Wages v. McDonald, 27 Vet. App. 233 (2015); Anderson v. Shinseki, 22 Vet. App. 423, 428-29 (2009); Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Once a referral for an extraschedular rating under § 4.16(b) is made by the Board, if, and only if, the appropriate official has determined that an extraschedular evaluation under § 4.16(b) is not warranted does the Board have jurisdiction to decide the claim on the merits when it returns. Accordingly, the Board must make the initial determination as to whether referral to the Director of Compensation Service is appropriate for an extraschedular evaluation under § 4.16(b) prior to June 21, 2010. As such, the only remaining question in this case is whether there is plausible evidence the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, for purposes of a possible extraschedular TDIU evaluation prior to June 21, 2010. 38 C.F.R. § 4.16 (b). The record indicates that the Veteran has not engaged in substantially gainful employment since April 10, 2010. In addition, the Veteran testified that when he was working as an instructor, the people he worked with understood his physical limitations, so they gave him a crew of younger guys to do the heavy lifting. See August 2018 Board Hearing Transcript. Therefore, the Board finds that a remand is required for the Director of Compensation Service to determine if an extraschedular rating is warranted for a TDIU under 38 C.F.R. § 4.16 (b). The matters are REMANDED for the following action: 1. The AOJ should obtain any of the Veteran’s outstanding VA and private medical records and associate them with the claims file. If possible, the Veteran himself should submit any pertinent new evidence (if any) regarding the condition at issue in order to expedite the claim. 2. Thereafter, unless the AOJ finds that a fully favorable decision can be rendered, refer the claim to the Director of Compensation and Pension Service for consideration of whether a TDIU on an extraschedular basis is warranted. 3. Thereafter, readjudicate the appeal. If the benefits sought on appeal remains denied, provide a Supplemental Statement of the Case to the Veteran and his representative, and an appropriate period of time in which to respond. Then, return the appeal to the Board. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Holcombe, 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.