Citation Nr: 21026372 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 13-09 362 DATE: April 30, 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 had active service from December 1988 to September 1992. This case initially came before the Board of Veterans’ Appeals (Board) on appeal from an April 2010 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). In June 2014, February 2017, and January 2020, the Board remanded the claim for additional development. The case has since been returned to the Board for further appellate review. Entitlement to a TDIU The Veteran contends that his service-connected disabilities render him unable to obtain and maintain gainful employment. During the period on appeal, the Veteran has been service connected for residuals of a distal tibia and fibula fracture with right ankle strain, rated at 20 percent; lumbar spondylosis, rated at 20 percent; right iliac crest bone graft, rated at 20 percent; distal tibia and fibula fracture with internal saphenous nerve insult, rated at 10 percent; and, a right lower leg surgical scar, rated at 10 percent. His combined disability rating has been 60 percent during the appeal period. In this case, the Veteran does not meet the schedular requirements for a TDIU. See 38 C.F.R. § 4.16(a). However, an extraschedular TDIU may be assigned in the case of a Veteran who fails to meet the percentage requirements but who is unemployable by reason of service-connected disability. 38 C.F.R. § 4.16(b). The Board cannot assign an extraschedular rating in the first instance. Bowling v. Principi, 15 Vet. App. 1,10 (2001). However, “rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities.” 38 C.F.R. § 4.16(b). The record reflects that after separation from service, the Veteran worked as a machinist and later, a security guard. The Veteran has reported that he stopped working in October 2009 due to pain experienced when performing work-related activities. Specifically, he reported that he is unable to sustain such work due to experiencing pain while walking, sitting, and standing for extended periods of time. See March 2010 VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability; and September 2010 Social Security Administration Decision. On VA examination in December 2009, the Veteran reported being unable to work due to pain in his back and legs. He reported walking with a cane and stated that he was unable to stand for more than 15 minutes and could only walk 50 yards without a break. Additionally, in his February 2010 claim, the Veteran contended that he was unable to secure or follow a substantially gainful occupation due to right leg, hip, back, and nerve disabilities. Of record are documents from the Social Security Administration (SSA) finding that the Veteran was disabled as of October 16, 2009, due to a primary diagnosis of disorders of muscle, ligament, and fascia; and a secondary diagnosis of disorder of the back (discogenic and degenerative). The Board points out that the Veteran is service connected for lumbar spondylosis. While SSA decision findings are not binding on VA, the records can be persuasive. As such, these records show that the Veteran was unemployed as of October 2009 due to, in part, his back condition. Given the Veteran’s work history as well as the evidence from the SSA, the Board finds that there is sufficient evidence to suggest that the Veteran may have demonstrated pathology beyond that contemplated by the schedular criteria and which may interfere with his employment opportunities. Considering the above, the Board finds that the Veteran’s claim of entitlement to a TDIU merits referral to the Director of Compensation and Pension Service for consideration of an extraschedular TDIU under 38 C.F.R. § 4.16(b). Accordingly, the matter is REMANDED for the following action: 1. Refer this case to the Director of Compensation and Pension Service for consideration of whether the Veteran is entitled to the award of a TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). The electronic claims files should be provided to the Director of Compensation and Pension Service. If it is determined that an opinion cannot be entered without additional examination, such examination should be scheduled in accordance with applicable provisions. 2. Then, readjudicate the claim remaining on appeal. If the decision is adverse to the Veteran, issue a   supplemental statement of the case and allow the appropriate time for response. Then, return the appeal to the Board. SONJA A. MISHALANIE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. R. Bobb, 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.