Citation Nr: 21026013 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 16-51 214 DATE: April 29, 2021 REMANDED Entitlement to a total disability rating based upon individual unemployability (TDIU), to include on an extraschedular basis, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from September 1970 to October 1973. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from both an April 2014 rating decision and a January 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The RO denied service connection for bilateral hallux valgus and bilateral osteoarthritis, as well as, entitlement to TDIU. In November 2019, the Veteran testified in front of the undersigned Veterans’ Law Judge. A transcript of the hearing is of record. In December 2019, the Board granted entitlement to service connection for left foot hallux valgus and bunion status post (s/p) osteotomy of the metatarsal head and bunionectomy; right foot hallux valgus and bunion s/p osteotomy of the metatarsal head and bunionectomy; osteoarthritis of the left 1st metatarsal phalangeal joint (MTPJ); and osteoarthritis of the right 1st MTPJ. And remanded the issue of entitlement to TDIU. In the August 2020 Supplemental Statement of the Case, the AOJ continued the denial of entitlement to TDIU. 1. Entitlement to aTDIU, to include on an extraschedular basis 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). Presently, the Veteran is service connected for painful scars, bilateral foot, rated 20 percent disabling; left foot hallux valgus and bunion status post (s/p) osteotomy of the metatarsal head and bunionectomy, with osteoarthritis of the left 1st MTPJ, rated 10 percent disabling; and right foot hallux valgus and bunion s/p osteotomy of the metatarsal head and bunionectomy, with osteoarthritis of the right 1st MTPJ, rated 10 percent disabling. The Veteran is also service connected, with non-compensable ratings, for left and right foot scars associated with hallux valgus and bunion status post (s/p) osteotomy of the metatarsal head and bunionectomy, with osteoarthritis of the 1st MTPJ. The Veteran’s combined rating score is 40 percent, effective November 25, 2013. Thus, the Veteran does not meet the schedular criteria for consideration of a TDIU rating. 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 Board cannot assign an extraschedular evaluation in the first instance under § 4.16(b). Nevertheless, the Board may adjudicate whether a referral to the Director, Compensation Service is warranted when the issue is either raised by the claimant or is reasonably raised by the evidence of record. See Thun v. Peake, 22 Vet. App. 111, 115 (2008); Barringer v. Peake, 22 Vet. App. 242 (2008). 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. In fact, the Court has specifically held that, although the Board is precluded from initially assigning an extraschedular rating on its own, there is no restriction on the Board's ability to review the adjudication of an extraschedular rating under § 4.16(b) or § 3.321(b)(1), once the Director of Compensation and Pension determines that an extraschedular rating is not warranted. Anderson v. Shinseki, 22 Vet. App. 423, 427-28 (2009). 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). The standard of review for referring a TDIU claim for Director of Compensation and Pension review is whether there is sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his/her service-connected disabilities. Ray v. Wilkie, 31 Vet. App. 58, 65-66 (2019). In particular, the Veteran has indicated that her last date of employment is February 2012, and that she is unable to work due to her service-connected bilateral foot conditions. See November 2014 TDIU Application. In addition, during an April 2014 VA examination, the examiner noted that the Veteran’s residual pain, swelling, and limited range of motion due to bilateral foot operations and bilateral foot degenerative joint disease limit her ability to work. In February 2020, the Veteran submitted a Vocational Assessment which concluded that the Veteran’s service-connected disabilities alone rendered her unable to obtain and maintain substantially gainful employment. This evidence meets the standard for referring the claim to 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. Associate with the claims folder updated VA treatment records. 2. Refer the Veteran’s claim for TDIU per § 4.16(b) to the Director, Compensation Service, for extraschedular consideration as to whether her service-connected disabilities preclude her from participating in gainful employment consistent with educational and occupational background. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Patrick C. Brady, Attorney Advisor 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.