Citation Nr: 21026913 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 17-08 768 DATE: May 4, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU), to include on an extraschedular basis pursuant to 38 C.F.R. § 4.16 (b), prior to July 1, 2020, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from July 1966 to July 1968. This matter is on appeal from a December 2015 rating decision. In November 2019, the Veteran and his spouse testified before the undersigned Veterans Law Judge at a Travel Board hearing. A transcript of the hearing is of record. In March 2020, this matter was remanded by the Board for further development. The Veteran contends that he has been unemployable since September 2013, in part, due to his service-connected PTSD and heart disability. See March 2015 VA Form 21-8940, Application for Increased Compensation Based on Unemployability and November 2019 Hearing Transcript. Pursuant to the Board's remand, in a March 2020 rating decision the RO increased the rating for the Veteran's PTSD to 100 percent, effective July 1, 2020. However, prior to July 1, 2020, the Veteran is service-connected for ischemic heart disease and PTSD, each rated 30% disabling; tinnitus, rated 10% disabling; and a scar from coronary bypass surgery and right ear hearing loss, each rated zero percent disabling. Accordingly, his total combined rating is 60% and the Veteran does not meet the minimum schedular requirements for TDIU prior to July 1, 2020. See 38 C.F.R. § 4.16 (a). Therefore, the only basis for the assignment of a TDIU is on an extraschedular basis. See 38 C.F.R. § 4.16 (b). 38 C.F.R. § 4.16 (b) provides that all veterans who do not meet the schedular criteria for TDIU but are otherwise unable to secure and follow substantially gainful occupation by reason of service-connected disabilities shall be referred to the Director, Compensation and Pension Service, for consideration of an extra-schedular rating of unemployability. In March 2020 a VA psychologist opined that the Veteran had no job-related difficulties secondary to service-connected mental health issues. In July 2020 a VA nurse practitioner opined that the Veteran's heart disability impacted employment. Due to the heart disability, he easily became short of breath, dizzy, fatigued, and lightheaded with minor activities such as walking a block. The Veteran was unable to perform strenuous activity, had difficulty walking, a slow and unsteady gait, and a history of falls. However, the nurse practitioner also stated that he worked last week and had his own business. Based on the Veteran's complaints of being unable to secure and follow substantially gainful occupation due to his service-connected disabilities, specifically his heart disability, remand for referral of the claim for TDIU prior to July 1, 2020, is required. In so remanding, the Board also notes that its referral of this claim for extraschedular consideration under § 4.16 (b) is simply a factual finding that does not bind the Board or require the Board to award an extraschedular rating should the claim be returned to the Board. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). In addition, on remand clarification from the Veteran concerning a more thorough description of his employment during the appeal period and to give him an opportunity to provide VA with evidence regarding his earnings, would be helpful based on the nurse practitioner's statement that he was working and had his own business in July 2020. The matter is REMANDED for the following actions: 1. Contact the Veteran and request that he either submit, or provide VA sufficient information and authorization to obtain any documentation pertaining to his wage earnings (such as pay stubs, W2 Forms, tax returns, etc.) documenting marginal employment. Any negative responses should be properly noted in the record. (Continued on the next page) In order to expedite this case, the Veteran's representative (and/or the Veteran) is asked to obtain these records herself/himself and inform the RO/AMC that all appropriate records have been submitted in order to ensure that all pertinent records have been submitted in a highly timely manner so that the VA may adjudicate this case quickly. 2. Then, refer this case to the Director, Compensation and Pension Service (C&P) for consideration of an extra-schedular TDIU award (38 C.F.R. § 4.16 (b)) prior to July 1, 2020. This referral should include a full statement of the Veteran's service-connected disabilities, as well as his employment, educational, and medical histories. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Adams, 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.