Citation Nr: 21025193 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 15-18 131 DATE: April 27, 2021 ORDER For the appeal period beginning March 13, 2020, entitlement to a total disability rating based on individual unemployability (TDIU) is granted. REMANDED For the appeal period prior to March 13, 2020, entitlement to an extraschedular TDIU is remanded. FINDING OF FACT For the appeal period from March 13, 2020, the evidence of record indicates the Veteran’s service-connected disabilities preclude him from securing or following a substantially gainful occupation consistent with his education and occupational experience. CONCLUSION OF LAW For the appeal period beginning March 13, 2020, the criteria for entitlement to a TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16 (2020). REASONS AND BASES FOR FINDING AN CONCLUSION The Veteran served on active duty from May 1969 to September 1971. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The case was previously before the Board but was remanded in pursuit of additional medical records. With the records collected, the matter is before the Board once more. From the appeal period from March 13, 2020, entitlement to a TDIU. The Veteran contends he is entitled to a TDIU. A TDIU may be assigned where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability rated at 60 percent or more; or as a result of two or more service connected disabilities, provided at least one disability is rated at 40 percent or more, and there are additional service connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). However, 38 C.F.R. § 4.16(b) provides that it is the established policy of the VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation and Pension Service, for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. For the purposes of a TDIU claim, the Veteran’s peripheral neuropathy of all four of his extremities can be considered one disability as they are result from a common etiology. 38 C.F.R. § 4.16. Starting on March 13, 2020, the Veteran was in receipt of an 80 percent combined rating. As such, from March 13, 2020, the Veteran meets the schedular requirements of a TDIU. The Board finds that the Veteran’s service-connected disabilities preclude him from securing or following a substantially gainful occupation consistent with his education and occupational experience. The evidence of record indicates the Veteran has an eighth-grade education and was working as a custodian until February 2008 with no subsequent employment. A June 2020 VA examination evaluated the Veteran’s peripheral neuropathy, finding that the Veteran has difficulty with prolonged standing and walking as well as difficulty working with small objects. The Veteran also struggles with identifying small objects by touch due to his service-connected disabilities. The Veteran’s disabilities prevent him from physically active employment as he cannot stand for long periods of time. The Veteran is also precluded from sedentary work, such as working at a computer, due to his inability to work with small objects like a computer mouse. In consideration of the above, and resolving reasonable doubt in the Veteran’s favor, the Board finds a TDIU is warranted for the appeal period from March 13, 2020. REASONS FOR REMAND For the appeal period prior to March 13, 2020, entitlement to an extraschedular TDIU. Prior to March 13, 2020, under the Combined Ratings Table at 38 C.F.R. § 4.25, the Veteran does not meet the percentage requirements for a TDIU set forth in 38 C.F.R. § 4.16(a) are not met. Consequently, he is not eligible for a TDIU on a schedular basis, and the only question for the Board is whether TDIU is warranted on an extraschedular basis under 38 C.F.R. § 4.16(b). The Board may not assign an extraschedular rating in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). 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, Compensation Service to consider entitlement on an extraschedular basis. Id.; 38 C.F.R. § 4.16(b). The evidence of record offers plausible evidence that the Veteran is unable to secure and follow a substantially gainful occupation. Social Security Administration records indicate the Veteran’s service-connected Hepatitis C and peripheral neuropathy significantly impact his ability to perform active or sedentary tasks. As the Board may not assign an extraschedular rating in the first instance, the Board finds that remand is warranted for an extraschedular TDIU referral. 38 C.F.R. § 4.16(b). The matters are REMANDED for the following action: 1. Refer the matter of entitlement to an extraschedular TDIU for the appeal period prior to March 13, 2020 to the Director of Compensation Service. 2. Then, readjudicate the claim on appeal. Romina A. Casadei Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Lee Feldman, 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.