Citation Nr: 21027261 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 16-30 069 DATE: May 5, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. Preliminary Matters The Veteran had honorable active duty service with the United States Army from September 1966 to September 1968. The Veteran received the Vietnam Service Medal, the Vietnam Campaign Medal, and the Purple Heart, among other commendations. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Board remanded the issue on appeal for further development. At that time, the Board also remanded the issue of entitlement to service connection for a psychiatric disorder other than posttraumatic stress disorder (PTSD). In a June 2020 rating decision, the RO granted service connection for other specified trauma and stressor related disorder (claimed as PTSD), effective August 1, 2013. As such, this issue is not before the Board. Accordingly, the remaining issue of entitlement to a TDIU has returned to the Board. REASONS FOR REMAND Although further delay is regrettable, the Board finds that a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Entitlement to a TDIU is remanded. The Veteran asserts that his service-connected disabilities prevent him from securing or following substantial gainful employment. VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from securing and following "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16 (a). The Board must evaluate whether there are circumstances in the Veteran's case, apart from any nonservice-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service-connected conditions. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); see also Blackburn v. Brown, 5 Vet. App. 375 (1993). The Veteran is service connected for other specified trauma and stressor related disorder (evaluated at 30 percent, effective August 1, 2013); residuals, shell fragment, right forearm, with retained foreign bodies (evaluated at 20 percent, effective September 27, 1968); residuals, shell fragment wound, left thigh (evaluated at 10 percent, effective September 27, 1968); and, traumatic brain injury (evaluated at 10 percent, effective June 27, 2014). His combined disability rating is 60 percent from June 27, 2014. Unfortunately, his service-connected disabilities do not meet the schedular criteria for TDIU under 38 C.F.R. § 4.16(a) throughout the period on appeal. Therefore, TDIU under 38 C.F.R. § 4.16(a) is denied. However, where the schedular criteria set forth above are not met, but a veteran is nonetheless found to be unemployable by reason of service-connected disabilities, VA shall submit the case to the Director of the Compensation Service for extraschedular consideration. 38 C.F.R. § 4.16(b). For a veteran to prevail on a claim for a TDIU on an extraschedular basis, it is necessary that the record reflect some factor which places the case in a different category than other veterans with an equal rating of disability. Van Hoose, 4 Vet. App. at 363 (1993). The pertinent question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. Id. This is so because a disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. Id. As discussed below, the Board finds that referral for extraschedular consideration of a TDIU is warranted. A review of the competent evidence of record, when taken in total, suggests that the Veteran may be unable to obtain or maintain substantially gainful employment on account of his service-connected disabilities. On VA examination for the Veteran's traumatic brain injury in November 2014, the examiner noted that the Veteran was unable to work due to tremors of both upper limbs. He was a handyman until 2005. A November 2014 VA aid and attendance or housebound examination report shows that the Veteran had functional restrictions of his upper extremities. The examiner noted that he had tremors, poor grip strength bilaterally, and some ulnar-sided numbness on the right hand. In his June 2016 VA Form 9, the Veteran stated that he has suffered from the effects of the shrapnel that was left in his body from the 1960s. He indicated that he cannot work. In a December 2016 brief, the Veteran stated, through his representative, that his service-connected conditions rendered him unemployable. Due to the disabilities to his dominant arm, he was released from employment from several jobs due to an inability to perform required tasks with the affected arm. An April 2019 VA treatment record notes that the Veteran drove a semi-truck for 25 years and had a handyman business for 30 years. He retired in 2005. The examiner noted that the Veteran has more than 300 pieces of shrapnel in his arms and back and is no longer able to work. He has difficulty with holding items in his hand because he cannot grip. As described, the Veteran does not meet the schedular rating criteria for a TDIU; however, there is evidence showing that the Veteran's service-connected disabilities precluded employment. The Board has no authority to award a TDIU under § 4.16(b) in the first instance. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001). The claim must therefore be remanded so that the issue of entitlement to a TDIU under § 4.16(b) can be referred to the Director of the Compensation Service for extraschedular consideration in the first instance. The matter is REMANDED for the following action: 1. Refer the issue of entitlement to a TDIU to the Director of the Compensation Service for extraschedular consideration under 38 C.F.R. § 4.16(b). (CONTINUED ON NEXT PAGE) 2. After completing the indicated development, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case (SSOC) and afforded the requisite opportunity to respond before the case is remanded to the Board. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. MacDonald, 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.