Citation Nr: 21029800 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 15-09 441 DATE: May 17, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected conditions prior to October 11, 2016, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from June 1971 to June 1973. In a November 2019 decision, the Board of Veterans' Appeals (Board), in pertinent part, denied entitlement to a TDIU. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In December 2021, while the case was pending at the Court, the parties signed a Joint Motion for Partial Remand (JMPR), requesting that the Court vacate the Board's decision to the extent that it denied TDIU. The Court subsequently granted the JMPR in a January 2021 order. The matter has now been returned to the Board for further consideration. Upon review of the record, the Board finds that the claim must be remanded. The Board sincerely regrets the additional delay caused by this remand but wishes to assure the Veteran that it is necessary for a full and fair adjudication of his claim. Entitlement to a TDIU due to service-connected conditions prior to October 11, 2016 is remanded. The Veteran contends that his service-connected conditions had significantly interfered with his employment. Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. The Board may assign total disability ratings for compensation where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16(a). A total disability rating may also be granted where the schedular rating is less than 100 percent and the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(b). For the period on appeal, the Veteran was service connected for lumbar arthritis, rated at 10 percent from June 24, 2015; left knee degenerative joint disease, rated at 10 percent from August 10, 2010 and 30 percent from August 31, 2011; right knee strain, rated at 10 percent from June 24, 2015; and left big toe hallux limitus, rated at 10 percent from June 24, 2015. His combined disability rating was 10 percent from August 10, 2010, 30 percent from August 31, 2011, and 50 percent from June 24, 2015. The Veteran's ratings do not satisfy the threshold requirements for a schedular TDIU during the period on appeal. See 38 C.F.R. § 4.16(a). The Veteran asserts he last worked as a full-time employee in June 2012 but that he did not become too disabled to work until June 2015. See November 2018 VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability. The Veteran only completed two years of high school, with no other education or training. The Veteran appeared for a knee VA examination in November 2010, in which the Veteran reported that getting in and out of his tractor trailer trucks and other vehicles caused pain to his knee and that he avoided crouching, squatting, and kneeling because of pain. A June 2011 knee VA examination reflects that the Veteran reported intensified knee pain since his November 2010 VA examination, especially activities including weightbearing, stair climbing, as well as weather changes. The Veteran was noted to wear a knee brace and used a cane, but the examiner made a conclusory finding that the Veteran's occupation was not affected because he was retired. The Veteran underwent another knee VA examination in November 2012, in which the Veteran reported his knees were becoming more painful, swelled, and gave out. He also reported he had a couple of falls due to his knee giving out. The examiner noted the Veteran used a cane and walker for balance during ambulation and a knee brace for stability. Additionally, the Veteran has been found to be disabled due to his left knee osteoarthrosis since June 2010 by the Social Security Administration. See March 2013 Medical Treatment Records Furnished by SSA, p. 1. In light of the Veteran's limited education, work experience, and difficulties caused by his service-connected knees, the Board finds that referral to the Director, Compensation Service, for consideration of the assignment of a TDIU on an extraschedular basis is warranted for the period prior to October 11, 2016. The matters are REMANDED for the following action: Refer the issue of entitlement to a TDIU to the Director, Compensation Service, for extraschedular consideration prior to October 11, 2016. Place a copy of the Director's decision in the Veteran's claims file. A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. L. Park, 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.