Citation Nr: 21040643 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 17-23 143 DATE: July 6, 2021 REMANDED Entitlement to a total rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service in the United States Army from June 1966 to May 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a videoconference Board hearing in January 2020; a transcript is of record. Subsequently, the Board remanded this matter in March 2020 for additional development to include adjudicating his TDIU claim. This matter has now returned to the Board for appellate consideration. The Board finds there has been substantial compliance with its prior remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). His claim for TDIU was adjudicated in May 2021. Additionally, the Veteran submitted a supplemental claim for TDIU, among other claims, in January 2021. It listed an October 2020 (notification October 26, 2020) statement of the case. However, this form was received beyond 60 days after notification. As such, it cannot be accepted as an opt into the modernized review system. 38 C.F.R. §§ 19.2, 19.52. His other claims, but not entitlement to TDIU, were adjudicated in an April 2021 rating decision. As such, the Board will continue adjudication of this matter in the legacy system. Entitlement to a TDIU on is remanded. The Veteran asserts entitlement to TDIU. However, the Veteran does not meet the criteria for consideration for entitlement to TDIU on a schedular basis because the combined rating does not satisfy the percentage requirements. In this regard, the Veteran does not have a single disability of 60 percent disabling, and he does not have a service-connected disability that is 40 percent or greater with a total combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). Rather, he has a rating of 10 percent prior to January 30, 2015, 40 percent between January 30, 2015 and February 4, 2021, and 50 percent thereafter. Nevertheless, the Veteran may be entitled to a TDIU on an extraschedular basis if it is established that he is unable to secure or follow substantially gainful employment as a result of the effect of his service-connected disabilities. 38 C.F.R. § 4.16(b). Therefore, if the schedular percentage threshold criteria are not met, but there is evidence of unemployability due to service-connected disabilities, the case must be submitted to the Director, Compensation Services, for extraschedular consideration of a TDIU. 38 C.F.R. § 4.16(b). Neither the RO nor the Board may assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1, 10 (2001); see also Wages v. McDonald, 27 Vet. App. 233, 236 (2015) (stating that "the Board is required to obtain the Director's decision before the Board may award extraschedular TDIU" and "[o]n its face, the regulatory scheme created by § 4.16(b) merely withholds from rating boards the authority to grant extraschedular TDIU in the first instance). The Veteran's VA Form 21-8940 shows that he has been largely unemployed since June 2010. He last worked as an insurance adjuster. Additionally, the Board acknowledges he lists employment as a consultant and handyman that has continued to the present day. However, the Board finds this employment tends to show marginal employment. In this regard, the Veteran reports his highest gross earning as a consultant as $1,000 per month and his highest as a handyman as $500 per month. Both of his positions are "as needed" or "as available." The threshold poverty limit was $15,644 for fiscal year 2020 for those over 65 in a two-person household. See https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html. The Board finds it less likely than not that he earned $1,500 per month for a calendar year when he only worked as needed and those earnings were the most he had earned. As such, the Board finds the evidence tends to show that the Veteran's part-time employment and limited income near or below the threshold poverty limit, amounts to marginal employment on a facts-found basis. There is competent evidence, to include the Veteran's assertions via his VA Form 21-8940, suggesting that he was unable to work due to his service-connected disabilities since June 2010. See 1/27/2020, VA 21-8940. Additionally, his February 2021 examination reports his service-connected diabetes retinopathy affects his vision and causes a functional impact. As such, the Board finds that a referral is warranted. This matter is REMANDED for the following actions: 1. Obtain any outstanding VA treatment records, to include all recent VA records. All requests and responses for the records must be documented. If any identified records cannot be obtained, notify the Veteran of the missing records, the efforts taken, and any further efforts that will be made by VA to obtain such evidence, and allow him an opportunity to provide the missing records. (Continued on the next page) 2. After associating any records with the claims file, refer the Veteran's request for a TDIU per § 4.16(b) to the Director, Compensation Service, for extraschedular consideration as to whether his service-connected disabilities preclude him from participating in gainful employment. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Morales, 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.