Citation Nr: 21031921 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 18-28 374A DATE: May 25, 2021 REMANDED Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service-connected degenerative joint disease with lumbosacral strain is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1976 to June 1979. This mater comes before the Board of Veterans' Appeals (Board) on appeal from a January 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, the Board issued a decision denying the issues of entitlement to a TDIU due to service-connection degenerative joint disease with lumbosacral strain and entitlement to an increased rating in excess of 20 percent for degenerative joint disease with lumbosacral strain. The Veteran appeal the issue of entitlement to a TDIU to the United States Court of Appeals for Veterans Claims (Court), but did not challenge that part of the Board's January 2020 decision that denied entitlement to an increased rating in excess of 20 percent for degenerative joint disease with lumbosacral strain. In January 2021, the Court issued a Joint Motion for Partial Remand (JMPR) vacating and remanding that portion of the Board's decision that denied the issue of entitlement to a TDIU due to service-connected degenerative joint disease with lumbosacral strain for further proceedings consistent with the JMPR. 1. Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service-connected degenerative joint disease with lumbosacral strain is remanded. The Veteran contends that he is unable to work due to his service-connected degenerative joint disease with lumbosacral strain and is entitled to referral to the Director of Compensation Services for consideration of an extraschedular total rating. See June 12, 2018, VA Form 9. Generally, to be eligible for TDIU, a percentage threshold must be met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If there is only one service-connected disability, or two or more with the same etiology or affecting the same body system, the disability rating must be 60 percent or more. 38 C.F.R. § 4.16(a). The Veterans is service connected for degenerative joint disease with lumbosacral strain evaluated as 20 percent disabling throughout the period on appeal. Thus, the Veteran does not meet the schedular criteria for entitlement to a TDIU. In such circumstances, VA must consider TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). While the Board cannot consider entitlement to TDIU under 38 C.F.R. § 4.16(b) in the first instance, it must consider whether a remand for referral to VA's Director of Compensation for such consideration is warranted. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). The Court has explained that this initial extraschedular referral decision under § 4.16(b) should address whether there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities." Ray v. Wilkie, 31 Vet. App. 58, 66 (2019). After reviewing the evidence of record, the preponderance of the evidence warrants a finding that there is sufficient evidence to substantiate a reasonable possibility that the Veteran is unemployable by reason of his service-connected disability. The Veteran was afforded a VA examination in March 2018. During the examination the Veteran reported that his back hurt all the time and worsens with chores. March 14, 2018, VA Examination. The examiner opined that the Veteran's low back condition did not impact the Veteran's ability to work. In an August 2019 Affidavit, the Veteran explained that because of his service-connected degenerative joint disease with lumbosacral strain he is unable to secure and follow a substantially gainful occupation due to symptoms such as near continuous pain, difficulty carrying and lifting objects, inability to stand or sit more than 20 minutes, difficulty sleeping and poor concentration. September 23, 2019, Affidavit. In further support of his contentions, the Veteran submitted additional affidavits from his two sisters who describe the symptoms they observe associated with the Veteran's low back condition that impact the Veteran's functional capacity. The Board finds highly persuasive and assigns great probative value to a July 2019 private vocational consultation and opinion. September 25, 2019, VRE Correspondence. The examiner opined that it is more likely than not that the Veteran has been unable to secure and follow substantially gainful employment since at least November 2015 due to his service-connected condition of degenerative joint disease with lumbosacral strain. The examiner found that medical records demonstrate that the Veteran experienced ongoing symptoms such as chronic low back pain, decreased range of motion, impaired sleep, and decreased concentration. The examiner further opined that the Veteran's service-connected condition of degenerative joint disease with lumbosacral strain prevented the Veteran from performing even sedentary work that requires the lowest level of physical demand. In rendering this opinion, the examiner noted the Veteran's need to recline 4 hours each day to alleviate low back pain his need to change position every 20 minutes while sitting, standing, or walking would render him excessively off task and significantly reduce acceptable productivity. The examiner further reported that the Veteran's need for a daily nap and for rest and time off for up to 4 days after over-exertion would exceed employer tolerances for breaks and absences and would eliminate his ability to maintain employment. The Board finds that the criteria for consideration of an extra-schedular rating are met as there is sufficient evidence to substantiate a reasonable possibility that the Veteran is unemployable by reason of his service-connected disability. A remand is therefore warranted for referral of the issue of entitlement to a TDIU to the Director of Compensation for a determination as to the Veteran's entitlement to an extraschedular TDIU pursuant to 38 C.F.R. § 4.16(b). The matters are REMANDED for the following action: Refer the issue of entitlement to a TDIU due to service-connected degenerative joint disease with lumbosacral strain to VA's Director of Compensation Service for extraschedular consideration pursuant to 38 C.F.R. § 4.16(b). K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Monica Ball Jackson, 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.