Citation Nr: 21032852 Decision Date: 05/28/21 Archive Date: 05/28/21 DOCKET NO. 12-14 270 DATE: May 28, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU), to include on an extraschedular basis is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1962 to August 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This appeal has been advanced on the Board's docket. 38 U.S.C. § 7107(a)(2). Entitlement to a TDIU, to include on an extraschedular basis The Veteran contends that his service-connected bilateral knee disabilities render him unemployable. The Veteran's claim for a TDIU was raised as part-and-parcel of increased rating claims previously before the Board. In January 2021, the Board remanded the claim for a TDIU for additional development, to include obtaining clarification regarding the Veteran's work history. Specifically, the Board noted that there was conflicting information concerning full-time employment, part-time employment, and when the Veteran stopped working. Thus, the Board requested clarification regarding the Veteran's work history. Pursuant to the Board's request for clarification, the Veteran submitted a new Veterans Application for Increased Compensation Based on Unemployability (VA 21-8940), and his past employer also submitted a new Request for Employment Information in Connection with a Claim for Disability Benefits (VA 21-4192). Both of these forms indicated that the Veteran was gainfully employed until June 2020, and the Veteran reported that he became too disabled to work on June 15, 2020. Section 4.16(a) provides a rating hurdle for schedular consideration of a TDIU. If there is only one such disability, this disability shall be ratable at 60 percent or more; 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. Here, the Veteran's combined disability rating is 50 percent since January 2020. Thus, he does not meet the schedular requirements for a TDIU since June 2020, even considering the Veteran's bilateral knee disabilities as one disability. However, in cases where the schedular criteria for TDIU are not met, an extraschedular rating is for consideration when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. §§ 3.321, 4.16(b). The Board does not have the authority to assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001); see also Christensen v. Wilkie, 2019 U.S. App. Vet. Claims LEXIS 1907 (explaining that the 2018 amendment to 38 C.F.R. § 3.321 (b) did not alter the requirement that the Board refer a claim for an extraschedular TDIU to the Director of Compensation Service in the first instance). Rating boards will refer to the Director of the Compensation Service for extraschedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16 (a). Here, the evidence reflects that the Veteran's bilateral knee disabilities may have prevented his ability to obtain or maintain substantially gainful employment since June 2020. Specifically, the evidence of record shows that the Veteran's work history consists solely of work as a dry cleaner, and prior to his termination, the Veteran was placed in a position at the customer service desk which required no physical labor. Despite being placed in this position, the Veteran's employer indicated that the Veteran was unable to adequately do that job and was terminated because of his knee disabilities. See March 2021 VA 21-4192. As there is evidence that the Veteran may be unemployable due to his service-connected bilateral knee disabilities since June 2020, a remand is required to refer consideration of extraschedular TDIU to the Director of Compensation and Pension. The matters are REMANDED for the following action: 1. Refer the Veteran's claim for a TDIU to the Director, Compensation and Pension Service, for consideration of TDIU on an extraschedular basis. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Mortimer, 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.