Citation Nr: 21040030 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 07-11 671 DATE: July 2, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) from July 31, 2006, is granted. REMANDED Entitlement to TDIU on an extraschedular basis prior to July 31, 2006, is remanded. FINDING OF FACT From July 31, 2006, the Veteran's combined disability rating is 90 percent with a single disability rated at least 50 percent disabling; his combined disabilities rendered him unemployable from that date. CONCLUSION OF LAW The criteria for TDIU on a schedular basis have been met from July 31, 2006. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1972 to April 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2004 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This appeal has a long and protracted procedural history. This appeal initially came before the Board in September 2012, at which time it included over 20 separate disability claims. During the pendency of the appeal, all of the various associated increased rating, earlier effective date, and service connection claims have been addressed by the Board or granted in full by the RO, and those decisions are now final. The appeal for TDIU was initially remanded in the September 2012 rating decision, as well as in September 2016 and again in May 2017. In July 2020, the remaining non-TDIU issue on appeal (service connection of arrhythmia) was granted by the Board, although it did not address entitlement to TDIU in that decision. This was in error. In fact, a June 2020 rating decision had been issued just prior to the most recent Board decision, in which it granted TDIU effective April 2010. The Veteran appealed the effective date under the Modernized system of review, pursuant to the Appeals Modernization Act, requesting Higher Level Review of the TDIU effective date. In December 2020, the RO issued a rating decision granting TDIU as early as June 10, 2008. However, the Veteran's initial claim of TDIU pertaining to this Legacy appeal was received April 29, 2003. Therefore, to the extent that the December 2020 rating decision did not grant TDIU from the date of the claim, and the Veteran appealed the initial denial of TDIU as part of this Legacy appeal, and neither has the Board fully adjudicated that question nor has TDIU been granted to the date of the initial claim, entitlement to that benefit prior to June 10, 2008, remains on appeal at this time. Indeed, recent submissions from the Veteran indicate his desire to continue pursuing TDIU from the date of his original claim. While the Board does recognize that the TDIU claim remains active, this is the final issue remaining on appeal from the 2003 claim and original 2012 Board decision/remand. 1. Entitlement to a total disability rating based on individual unemployability (TDIU) from July 31, 2006 A TDIU is assigned when a veteran's service-connected disability or disabilities are of such severity that the veteran cannot secure or follow a substantially gainful occupation solely because of that disability or disabilities. 38 C.F.R. § 4.16. Generally, TDIU is awarded on a schedular basis, which requires that, if there is only one service-connected 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. 38 C.F.R. § 4.16 (a). The Veteran initially filed his claim for TDIU in April 2003, which was combined with a subsequent increased rating and service connection claim filed several months later. Throughout the appeal period, which has stemmed since that 2003 claim, various claims have been granted. Presently, the Veteran is rated 90 percent disabled (combined) with a single 50 percent rating for bilateral plantar fasciitis from July 31, 2006. This satisfies the basic schedular criteria for a grant of TDIU from that date forward. The Board has reviewed the Veteran's various medical evidence from July 31, 2006. From that date he is service connected for bilateral plantar fasciitis (50 percent), degenerative disc disease of the cervical spine (20 percent), blepharitis (20 percent), left knee arthritis (10 percent), degenerative disc disease of the lumbar spine (10 percent), left wrist carpal tunnel syndrome (10 percent), meralgia paresthetica with restless leg syndrome of the right lower extremity (10 percent), meralgia paresthetica with restless leg syndrome of the left lower extremity (10 percent), temporal mandibular joint syndrome (10 percent), hepatitis C (10 percent), right knee arthritis (10 percent), left groin strain and tear (10 percent), heart arrhythmia (10 percent), orchalgia (noncompensable), oral lesions (noncompensable), impotence/erectile dysfunction (noncompensable), and maxillary adenocarcinoma with loss of teeth (noncompensable). Based on the evidence of record, these various disabilities significantly interfered with the Veteran's ability to obtain and maintain employment. As such, because the Veteran met the schedular criteria for TDIU, and is found to have combined service-connected disabilities which interfere with his ability to obtain and maintain gainful employment, the Board will grant TDIU effective July 31, 2006. REASONS FOR REMAND 1. Entitlement to TDIU on an extraschedular basis prior to July 31, 2006, is remanded. Inasmuch as the Board regrets any further delay in the final adjudication of this appeal, an additional remand is necessary. As noted above, the Veteran's initial claim for TDIU on appeal was filed in April 2003. While the Veteran's various other related claims have resulted in his meeting the schedular criteria for TDIU effective July 31, 2006, prior to that date (and throughout the period on appeal) his combined rating was 60 percent with a maximum single disability rating of 20 percent each for Reiter's syndrome, degenerative disc disease of the cervical spine, and blepharitis (additional disabilities subject to service connection at that time include restless leg syndrome, temporomandibular joint syndrome, hepatitis C, and orchalgia). This does not meet the basic schedular criteria for a grant of TDIU. Nonetheless, as demonstrated by the Veteran's claim, he asserts that he was unemployable from 2003 to the present, and his various VA examinations do indicate that his various disabilities may have interfered with his ability to obtain and maintain employment during that period of time. Unfortunately, the Board cannot consider entitlement to TDIU on an extraschedular basis in the first instance. Instead, the Board is required to refer all cases of veterans who allege unemployability by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16 (a), to the Director for extraschedular consideration. 38 C.F.R. § 4.16 (b); Bowling v. Principi, 15 Vet. App. 1 (2001). As a result of the Veteran not meeting the schedular criteria prior to July 31, 2006, the Board finds that a remand is warranted to refer his TDIU claim for extraschedular consideration in the first instance. The matters are REMANDED for the following action: Refer the Veteran's claim for TDIU for the period prior to July 31, 2006, to VA's Director of Compensation Service for extraschedular consideration. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Pryce, Counsel