Citation Nr: 21040085 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 20-17 973 DATE: July 2, 2021 REMANDED Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service from September 1962 to May 1974 with subsequent Reserve service. This matter comes to the Board of Veterans' Appeals (Board) from a June 2018 rating decision of a Regional Office (RO) for Department of Veterans Affairs (VA). The Board remanded this matter in May 2020, August 2020, and February 2021. The case has again returned to the Board. 1. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. The Veteran maintains that his service-connected disabilities prevent him from performing substantially gainful employment. He specifically asserts that the symptoms of his service-connected coronary artery disease and left and right knee arthritis, including the effects of medications that he takes for these conditions, preclude employment. See April 2021 Veteran Correspondence. A TDIU may be assigned, if the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more. 38 C.F.R. § 4.16 (a). Here, the Veteran is currently in receipt of separate 10 percent ratings for his service-connected coronary artery disease, left knee traumatic arthritis, right knee osteoarthritis, tinnitus, and eczema, and a noncompensable (0 percent) evaluation for a chest scar. See April 2021 Rating Decision Codesheet. His current combined evaluation is 40 percent. See id. See also 38 C.F.R. § 4.25 (Combined ratings table). He thus does not currently meet the threshold minimum percentage standards enunciated in 38 C.F.R. § 4.16(a). If a veteran does not meet the threshold minimum percentage standards, rating boards are required to refer to the Director of Compensation Service for extraschedular consideration all cases where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b). See also Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, despite the Veteran not meeting the percentage requirements for TDIU, the Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected conditions and advancing age, which would have justified a TDIU. 38 C.F.R. §§ 3.341 (a), 4.19. More recently, the Court clarified that the initial decision whether to remand for extraschedular referral to the Director of Compensation Service 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. The Board's initial finding that extraschedular referral for TDIU is warranted is a factual one but is necessarily based on an evidentiary threshold that is lower than that for the ultimate decision to award an extraschedular TDIU rating. Ray v. Wilkie, 31 Vet. App. 58, 62-66 (2019). In the instant case, the Veteran submitted an April 2021 statement explaining that his medical treatment providers have instructed him to "avoid standing or sitting for any great length of time" as a result of his service-connected knee disabilities. See April 2021 Veteran Correspondence. Additionally, he stated that his coronary disease, and the medications that he takes for it, cause him to be "tired most times during the day" and require that he "take a short nap to regain [his] strength. Id. As a result, he believes that the manifestations and functional impairments caused by his service-connected coronary artery disease and bilateral knee arthritis render him unable to "hold a regular 9 to 5 job and be expected to perform in a satisfactory manner." Id. The Veteran's April 2018 and February 2020 VA knee examination reports indicate that his bilateral knee disabilities affect his ability to stand and walk for prolonged periods. Additionally, the March 2021 VA heart conditions examination reflects fatigue as a symptom of the Veteran's coronary artery disease. Although there is evidence to the contrary, the Board finds that the Veteran's competent statements, coupled with the findings reflected on the VA examination reports discussed above, meet the "lower" evidentiary threshold enumerated by the Court in Ray, namely, that the evidence sufficiently raises a "reasonable possibility" that the Veteran is unemployable. See 31 Vet. App. at 66. As such, referral to the Director of Compensation Service for extraschedular consideration is warranted. The matters are REMANDED for the following action: 1. Refer the Veteran's claim to the Director of Compensation and Pension Service, for consideration of an extra-schedular TDIU award in accordance with 38 C.F.R. § 4.16 (b). The Director should note that an extraschedular evaluation under 38 C.F.R. § 4.16 (b) requires a determination that a Veteran is rendered unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disabilities. The Veteran's employment history, educational and vocational attainment, and all other factors having a bearing on his employability (or lack thereof) should be considered. The results of this referral must be included in the claims file. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. McCabe, 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.