Citation Nr: 21031434
Decision Date: 05/21/21	Archive Date: 05/21/21

DOCKET NO. 10-37 099
DATE: May 21, 2021

REMANDED

Entitlement to a total disability based on individual unemployability (TDIU) prior to June 20, 2017, is remanded.

REASONS FOR REMAND

The Veteran had active duty in the U.S. Army from February 1966 to February 1969 and from January 1991 to May 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

This appeal has a long procedural history and has been before the Board previously. In December 2019 the Board granted the issue of a TDIU with an effective date of June 20, 2017. Thereafter, the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a November 2020 Order, the Court approved a Joint Motion for Partial Remand (JMPR), in which the parties agreed that the Board failed to discuss various documents in the record that addressed the Veteran's inability to secure and follow a substantially gainful occupation prior to June 2017. The JMPR remanded the issue of a TDIU for further actions in accordance with its decision. The JMPR also indicates that the ratings issues decided in the December 2019 Board decision regarding the left knee were not appealed. As such, they are no longer before the Board. 

A TDIU prior to June 20, 2017.

As mentioned above, the parties agreed that the December 2019 Board decision failed to discuss various documents in the record that addressed the Veteran's inability to secure and follow a substantially gainful occupation prior to June 2017. Such evidence includes Social Security Administration records that discuss the Veteran's unemployability due, in part, to his service-connected back, knee, and foot disabilities. Additionally, evidence of record prior to June 2017 shows that the Veteran's disabilities impacted his functional ability to walk and climb ladders. Further, the record shows that the Veteran missed 25 weeks of work between 2015 and 2017. Moreover, evidence from September 2015 noted that the Veteran's service-connected hearing loss impacted his ability to perform his job. Furthermore, the August 2017 TDIU application shows that the Veteran may have been unemployed or marginally employed prior to June 2017. See 11/23/2020 CAVC Decision, at pages 2, 3, 4, and 5.

However, prior to June 20, 2017, the Veteran did not meet the schedular percentage requirements for a TDIU under 38 C.F.R. § 4.16(a). Nevertheless, VA policy is to grant a TDIU in all cases where service-connected disabilities preclude gainful employment, regardless of the percentage evaluations. 38 C.F.R. § 4.16(b). However, the Board is prohibited from assigning a TDIU on the basis of 38 C.F.R. § 4.16(b) in the first instance without ensuring that the claim is referred to VA's Director of Compensation Service for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b). Bowling v. Principi, 15 Vet. App. 1, 10 (2001); Wages v. McDonald, 27 Vet. App. 233, 236 (2015).

Therefore, the matter of entitlement to a TDIU is being remanded and referred to VA's Director of Compensation Service for extraschedular consideration.

 

This matter is REMANDED for the following action:

Refer the matter of a TDIU on an extraschedular basis prior to June 20, 2017, under 38 C.F.R. § 4.16(b) to the Director of Compensation Service for adjudication and notify the Veteran of such action. After completion of the above development and any additionally indicated development, readjudicate the claim for a TDIU on an extraschedular basis. 

 

 

Paul Sorisio

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. Fuentes, 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.