Citation Nr: 21031812 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 17-63 585 DATE: May 24, 2021 REMANDED Entitlement to total disability based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1973 to May 1977 and had subsequent service in the Army National Guard from April 1998 to April 2002 and from June 2002 to July 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2019, the Veteran testified before the undersigned at a Board hearing. A transcript of that hearing has been associated with the virtual file and reviewed. In January 2020, the Board denied the Veteran's claim for TDIU. The Veteran appealed the denial to the Court of Appeals for Veterans Claims (CAVC). In December 2020, pursuant to a joint motion for remand (JMR) filed by the VA and the Veteran, CAVC vacated the Board's 2020 decision and remanded it to the Board for further action. It has now returned to the Board for a decision that abides by the terms of the JMR. Entitlement to a TDIU is remanded. A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Id. In the 2020 JMR, the parties agreed that the Board erred by failing to provide adequate reasons or bases in addressing the TDIU matter. Specifically, when addressing the Veteran's work history, the Board noted the Veteran obtained a bachelor's degree in psychology and previously worked in security warehouses, lawn mowing, and the handyman business. However, it failed to address evidence that the Veteran also worked as a general laborer and mechanic. The Veteran contends that he is not employed due to both mental and physical disabilities. Specifically, in numerous VA 21-8940 forms he asserted that the disabilities that prevented him from securing and following and gainful employment are vision problems, muscle joint pain, schizophrenia, headaches, bad ankles, bad calf, and his bilateral knee disabilities. See 12 /08/2017, 9/5/2017, 6/11/2018, 1/15/2019, and 3/17/2019 VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability. In this case, the Veteran is service connected for the left and right knees, each rated at 10 percent. His combined rating is 20 percent from June 16, 2017. See 38C.F.R. §4.25. Therefore, he does not meet the schedular requirements for TDIU per 38 C.F.R. §4.16(a). Based on the forgoing, the Veteran does not meet the percentage standards set forth in § 4.16(a). Therefore, the Board may not consider his claim for a TDIU in the first instance but will refer it to the Director, Compensation Service, if it is shown that he is unemployable by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). As described in Ray v. Wilkie, the correct standard for referral is whether there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities." 31 Vet. App. 58, 66 (2019). At his November 2019 hearing, he indicated that he last worked in 1996 in security warehouses. He also reported he had bachelor's degrees in psychology and history. Regarding his knee disabilities, he testified that he had pain when walking, including stairs, and he used a cane daily. Records obtained from the Social Security Administration (SSA) indicate that the Veteran became disabled in February 11, 2013, due primarily to affective/mood disorders and secondary to substance addiction/dependence disorder of alcohol. His job history indicated that he last worked part-time in 2009 as a handyman and lawn maintenance. Prior jobs he held included janitor, laborer, laminator, light wheel vehicle mechanic, and security guard. He also indicated that he was found guilty of a felony in 2008 and no one would hire him because of it. An accompanying November 2010 evaluation found him to have a normal gait with mild truncal ataxia. He could squat a full squatting posture and assume an erect position without difficulty. He ambulated with no assistive devices. He had no significant restriction in his ability to walk, stand, stoop, climb, or lift A November 2017 VA examiner indicated that the Veteran should avoid physical labor that required repetitive or heavy lifting, recurrent squatting or kneeling, and prolonged walking or standing. He was suited to light physical labor and that sedentary work would increase knee joint pain and stiffness. He was advised to avoid repetitive or heavy lifting, recurrent squatting/kneeling, prolonged walking/standing, and repetitive stair climbing. July 2018 and November 2018 VA examiners documented that he had trouble kneeling, crouching/squatting. He also had normal muscle strength. While the Veteran has a college education, his past jobs entailed some form of physical work. Some of the limitations described by the VA examiners could prohibit the Veteran from working in the same fields. As such, there is sufficient evidence to substantiate a reasonable possibility that the Veteran is unemployable due to his service-connected disabilities, and remand for referral to the Director of the Compensation Service for consideration of extraschedular consideration in the first instance is warranted. This matter is REMANDED for the following action: Refer the Veteran's claim for TDIU to the Director of the Compensation Service for extraschedular consideration per 38 C.F.R. § 4.16(b). Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Cruz, 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.