Citation Nr: 21029896 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 09-45 670 DATE: May 17, 2021 REMANDED Entitlement to a total disability rating based on unemployability (TDIU), to include on an extraschedular basis, is remanded. REASONS FOR REMAND The Veteran had active service from September 1986 to November 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of a Regional Office (RO) for Department of Veterans Affairs (VA), in Los Angeles, California. In March 2013, the Veteran testified before the undersigned Veterans' Law Judge at a travel board hearing; a copy of the transcript is of record. In July 2017 the Board remanded the claim for additional development to include additional records and an opinion from the Director of Compensation for extraschedular consideration. The Veteran was represented by a Veterans Service Organization (VSO) during this appeal. He revoked their representation in February 2021, after certification of the case to the Board. As the Veteran has not appointed a new representative, the Board considers him to be self-represented in this appeal. 1. Entitlement to a total disability rating based on unemployability (TDIU), to include on an extraschedular basis is remanded. The Veteran contends that he is entitled to a TDIU throughout the appeal period. He specifically alleges that his service-connected right knee disability has been exceptionally disabling throughout the appeal. He also specifically contends that the symptomatology he experiences due to his service-connected disability is not contemplated within the relevant rating criteria such that he is entitled to an extraschedular TDIU throughout the period on appeal (August 2006 to present). The Veteran's combined schedular evaluation is 50 percent from May 11, 2009 to September 15, 2013, and 30 percent from September 16, 2013 to the present. The Veteran is service connected for the following conditions: Right knee degenerative joint disease, rated as 50 percent disabling from May 11, 2009 to September 15, 2013, and 10 percent disabling for all other periods; Status post-right anterior cruciate ligament reconstruction, rated as 20 percent disabling; and A noncompensable scar, status postoperative right anterior cruciate ligament. He does not meet the schedular threshold for TDIU under 38 C.F.R. § 4.16 (a) at any time during this claim period. Because the Veteran's combined rating did not meet the percentage standards of 38 C.F.R. § 4.16(a) for the appeal period, the claim for a TDIU may be considered only under 38 C.F.R. § 4.16(b) on an extraschedular basis. An extraschedular TDIU may be assigned in exceptional cases to a veteran who is found to be unemployable because of service-connected disabilities but does not meet the percentage standards set forth in § 4.16(a); in such cases, the rating authority should refer the matter to the Director of the Compensation Service for extraschedular TDIU consideration. 38 C.F.R. § 4.16(b). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. In this case, at the direction of the Board, the RO referred the claim for a determination as to whether the Veteran is entitled to a TDIU on an extraschedular basis. The Veteran ceased working in construction in December 2008 and alleges this was due to his service-connected disability. The Veteran filed his application for TDIU in January 2018. The Veteran has a high school diploma and three years of college education. His past employment included general build construction. In the January 2018 VA Form 21-8940 (formal TDIU claim) the Veteran asserted that his service-connected knee disability alone precluded him from securing or following a substantially gainful occupation, entitling him to a TDIU. He stated that difficulties with study due to chronic knee, foot, and hip ain along with constant falling (due to instability with walking) which resulted in many [tardies] upon which I was asked to leave. He also stated that he had to "stop right knee kept giving way even with brace. Pain was to severe and began to take too much pain killers." The Director concluded in a November 2020 administrative decision that Veteran was not entitled to a TDIU, including on an extraschedular basis. The rationale provided was that prior to May 2, 2011 "[a]lthough there are limitations due to the Veteran's back condition, the preponderance of the evidence does not show that the service-connected condition prohibits the Veteran from obtaining or maintaining gainful employment". See November 24, 2020 Director, Compensation Service Determination Letter. The Board finds that the reference to the back in this letter is a typo and is clarified later in the letter. The Veteran contends that the VA has failed to consider favorable evidence that shows his right knee disability has rendered him unemployable. See January 2021 Correspondence. Specifically, he asserts that numerous physical capacities tests have found him unemployable due to his service-connected knee disability. See March 2016, March 2018 and September 2019 Physical Capacities Tests. The evidence of record shows the Veteran has been in receipt of Vocational Rehabilitation and Educational (VRE) benefits. A January 2005 Counseling Record determined the Veteran to have a serious employment handicap due to his service-connected knee disability. A review of the claims file indicates his VRE benefits have been discontinued and reinstated several times over more than a decade. He has been authorized to receive VRE benefits in each year from 2006-2018. His benefits were most recently discontinued in January 2019 due to noncompliance. See January 2019 VR-16 Interruption Letter; see also March 2019 VRE Communication. As evidenced by the various interruptions in the Veteran's VRE benefits, there may be additional and more recent records unassociated with the Veteran's claims file. The Veteran also contends, and the evidence suggests, that the Social Security Administration (SSA) determined the Veteran to be disabled. A review of the Veteran's claims file documents the Veteran may be in receipt of SSA benefits. After review, the Board finds that the record may be incomplete. SSA records were obtained in January relating to the Veteran. Those records do not appear to contain a determination that the appellant is disabled. An order to dismiss the Veteran's claim for disability benefits under Title II is of record. See October 2019 Social Security Record. The Administrative Law Judge in that order dismissed the Veteran's appeal due to a positive determination in a concurrently filed Title XVI claim for benefits. Id. Accordingly, the Board will remand the matter for additional development to obtain complete SSA and Vocational Rehabilitation records. The matter is REMANDED for the following actions: 1. Obtain the most recent VA medical records. The most recent records date to March 2020. 2. Obtain the Veteran's federal records from Social Security Administration. Document all requests for information as well as all responses in the claims file. 3. Obtain the Veteran's complete Vocational Rehabilitation file. 4. Provide the Veteran with a new VA Form 21-8940 with instructions that it should be completed in order to assist with the adjudication of his TDIU claim. If the Veteran provides a completed VA Form 21-8940, the AOJ should complete any additional development prompted by the information on the completed form. 5. Ask the Veteran to provide IRS tax returns for the years he claims he has been unable to obtain and maintain substantially gainful employment due to service-connected disabilities and a statement that the copy is an exact duplicate of the return filed with the IRS. Provide the Veteran with an IRS Form 4506-T "Request for Transcript of Tax Return" which may also be found at https://www.irs.gov/pub/irs-pdf/f4506t.pdf so that the Veteran may request tax returns and submit them to VA. Tell the Veteran that if he does not have copies of his tax returns for the requested years, he may use the IRS form cited to above. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kelsey Love, 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.