Citation Nr: 21025084 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 17-25 369 DATE: April 27, 2021 REMANDED Entitlement to a total disability rating for individual unemployability (TDIU) on an extraschedular basis for the period prior to November 8, 2017 is remanded. REASONS FOR REMAND The Veteran served with the United States Army from November 1965 to November 1967. This matter was previously before the Board of Veterans’ Appeals (Board) in October 2019. In that decision, the Board denied the Veteran’s claim for entitlement to TDIU. See October 2019 Board Decision. The Veteran appealed to the United States Court of Appeals for Veterans Claims (CAVC) the Board’s October 2019 decision that denied that claim. In August 2020, CAVC granted a Joint Motion for Partial Remand (JMPR) and vacated and remanded that part of the Board’s decision. The JMPR noted that the Board’s October 2019 decision erred when it relied on the March 2017 and February 2018 VA opinions, did not address favorable evidence for the Veteran’s claim and failed to factor in the Veteran’s education and work history into their analysis. See August 2020 CAVC Decision. Following the August 2020 CAVC decision, the Veteran’s claim for TDIU was remanded again for additional development in January 2021. Specifically, the RO was directed to schedule a VA examination for the Veteran’s service-connected claims to determine the nature and severity of the Veteran’s disabilities. Following the January 2021 remand, the Veteran was granted TDIU effective November 8, 2017. See February 2021 Rating Decision. The Board notes that this is a partial grant and an evaluation for TDIU for the period prior to November 8, 2017 is still warranted. The Veteran’s appeal has been returned to the Board for further appellate consideration.    Entitlement to a total disability rating for individual unemployability (TDIU) on an extraschedular basis for the period prior to November 8, 2017 is remanded. Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Where these percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service- connected disabilities. 38 C.F.R. § 4.16(b). The Board finds the Veteran did not meet the schedular rating criteria required for TDIU. For the period prior to November 8, 2017, the Veteran was service connected for residuals of frostbite of the bilateral lower extremities at a combined 20 percent rating, peripheral neuropathy of the right and left lower extremities, rated as 20 percent disabling each, tinnitus at a 10 percent rating, bilateral inguinal hernia at a 0 percent rating and a inguinal hernia repair scar at a 0 percent rating. The Veteran’s combined evaluation was 50 percent from December 2008 and 60 percent from July 2013. See February 2021 Rating Decision Codesheet. Therefore, the Veteran did not meet the minimum percentage standards required in 38 C.F.R. § 4.16(a). Despite this fact, the Veteran continues to assert that he was unemployable during that period due to his service-connected disabilities, specifically his residuals of frostbite. Where the schedular criteria set forth in 38 C.F.R. § 4.16(a) are not met, but a veteran is nonetheless found to be unemployable due to his service-connected disabilities, VA shall submit the case to the Director of Compensation Service for extraschedular consideration. See 38 C.F.R. § 4.16(b). Once a referral for an extraschedular TDIU rating under § 4.16(b) is made by the Board, the Director of Compensation Service then determines whether an extraschedular TDIU evaluation under § 4.16(b) is warranted. At that juncture, only then does the Board have jurisdiction to decide the TDIU claim on the merits when it returns. Therefore, the Board’s analysis is limited to either granting or denying the (implied) request for referral for extraschedular consideration for the period prior to November 8, 2017. Here, during the period on appeal, the Veteran was service connected for residuals of frostbite. In order to request a referral for extraschedular consideration, the evidence of record must suggest that the Veteran’s service-connected residuals of frostbite precluded substantially gainful employment. The record indicates that the Veteran was last employed in October 2004. The Veteran worked in maintenance at Morrow Enterprise from 2001 to October 2004 and as a janitor at Gilliand Janitorial from 1967 to October 2004. Additionally, the Veteran completed up to two years of college and has not attended or completed any type of specialized training, trade or vocational school. See January 2016 VA 21-8940 Veterans Application for Increased Compensation. The Veteran has consistently reported his service-connected residuals of frostbite have prevented him from obtaining or maintaining gainful employment. In March 2014, the Veteran submitted a request for employment information. In this form the Veteran noted that he could not walk or perform his work duties. See March 2014 Request for Employment Information. Additionally, the Veteran submitted a congressional request in October 2015. The Veteran reported that he developed neuropathy because of the residuals of his frostbite and was unable to walk as a result. He noted that because of this he cannot work and support his household because he was permanently wheelchair bound. See October 2015 Congressional Request. Further, the Veteran’s family members have submitted several lay statements over several years corroborating the Veteran’s contentions that he was unable to work due to his frostbite residuals. In May 2003 several of the Veteran’s family members including his brother, son, and daughter in law submitted lay statements. They all reported the Veteran was unable to work due to his unbearable feet pain caused by the residuals of his frostbite. See May 2003 Brother Lay Statement, May 2003 Son Lay Statement, May 2003 Daughter in Law Lay Statement. In July 2014, the Veteran’s sons and son in law submitted lay statements noting that the Veteran’s pain in his feet have prevented him from working. See July 2014 Son Lay Statement; see also July 2014 Son/ Son in Law Lay Statements. The Board finds that the evidence indicates the Veteran’s service-connected residuals of frostbite rendered him unemployable prior to November 8, 2017. Therefore, the Board finds that referral is warranted. The Veteran has demonstrated through lay and medical evidence that his service-connected residuals of frostbite have precluded him from substantially gainful employment. On remand, the TDIU claim for the period prior to November 8, 2017 should be referred to the Director of Compensation Service for extraschedular consideration under 38 C.F.R. § 4.16(b). The matters are REMANDED for the following action: Refer the Veteran’s claim of entitlement to TDIU prior to November 8, 2017 to the Director of Compensation Service for consideration of the assignment of a TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b). Include a full statement as to the Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue. A copy of the Director’s decision must be associated with the claims file. K. MARENNA Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Emily A. Kotroco 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.