Citation Nr: 21028455
Decision Date: 05/11/21	Archive Date: 05/11/21

DOCKET NO. 16-27 799
DATE: May 11, 2021

REMANDED

Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is remanded.

REASONS FOR REMAND

The Veteran served on active duty from November 1986 to March 1991.

This case comes on appeal to the Board of Veterans' Appeals (Board) from a February 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The May 2016 Statement of the Case addressed the issues of entitlement to an increased rating for hammertoes of the right foot and entitlement to a TDIU. In her June 2016 substantive appeal, the Veteran indicated that she was only appealing the issue of entitlement to a TDIU.

In October 2018, the Board remanded the case for further development. 

1. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is remanded.

The Veteran does not presently meet the schedular criteria for entitlement to a TDIU.  See 38 C.F.R. § 4.16(a).  However, it is the established policy of 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.  See 38 C.F.R. § 4.16(b).  Submission to the Director of Compensation and Pension Service (Director) for extraschedular consideration is warranted in all cases of veterans who are unemployable by reason of service connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). 38 C.F.R. § 4.16(b).

Here, the Veteran is not currently employed in a substantially gainful occupation. See, e.g., May 2013 VA Form 21-8940.  Significantly, the July 2019 VA examiner concluded that the Veteran's headaches impacted her ability to work because the Veteran may need time off for rest ot address the headache pain and treatment.  The examiner also remarked that the Veteran had well documented issues with her headaches and that her headaches may impact her work performance due to poor attendance.  The Board finds such evidence warrants a referral to the Director for extraschedular consideration pursuant to § 4.16(b).  Accordingly, the issue of entitlement to a TDIU is remanded for referral to the Director for consideration of a TDIU pursuant to § 4.16(b).  See Bowling v. Principi, 15 Vet. App. 1 (2001).

The matter is REMANDED for the following action:

Refer the issue of entitlement to a TDIU to the VA Director of Compensation and Pension Service for adjudication of entitlement to a TDIU under 38 C.F.R. § 4.16(b).

 

 

T. V. Casey

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Hammad Rasul, 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.