Citation Nr: 21041083
Decision Date: 07/08/21	Archive Date: 07/08/21

DOCKET NO. 17-31 092
DATE: July 8, 2021

REMANDED

Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded.

REASONS FOR REMAND

The Veteran had active service from May 1967 to May 1970.  In December 2019 and January 2021, the Board remanded the Veteran's TDIU claim as inextricably intertwined with his claim for service connection for headaches.  In a March 2021 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for headaches, therefore the issue of service connection for headaches is no longer appeal.  

The Veteran's combined disability rating does not meet the qualifications as required by the schedular requirements for TDIU.  See 38 C.F.R. §§ 3.340, 3.341, 4.16(a).  It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reasons of service-connected disabilities shall be rated totally disabled.  Therefore, in the case of veterans who are unemployable due to service-connected disabilities, but who do not meet these schedular percentage standards set forth in 38 C.F.R. § 4.16(a), the case should be submitted to the Director of the Compensation Service for extraschedular consideration.  The Veteran's service-connected disabilities, employment history, educational level, and vocational attainment must be considered.  See 38 C.F.R. § 4.16(b).

The Board finds referral to the Director of the Compensation Service for extraschedular consideration of a TDIU is warranted.  The evidence shows the Veteran's service-connected disabilities prevented him from securing gainful employment.  In an October 2014 VA examination the examiner opined that the Veteran's eye disability may limit his ability to work jobs that required operating heavy equipment or vehicles.  Likewise, at his September 2019 Board hearing, he testified that he constantly had to use eyedrops for his eye disability, which impaired his vision.

In October 2014 he also had a VA examination for his bilateral lower extremity disability.  While his disability was rated as mild, the examiner noted both legs showed severe intermittent pain, moderate constant pain, moderate paresthesias and/or dysesthesias, and moderate numbness.  The Veteran reported that he was unable to continue working as a janitor because of his neuropathy, though the examiner opined that he would work with reasonable accommodations.

In a November 2014 treatment note the Veteran reported using a cane for balance and having issues with stamina.  The note also indicated he may need to get a walker.  At his Board hearing he testified that he used a walker and had issues getting dressed and bending over.  He reiterated that he was no longer able to work as a custodian because of the physical nature of the job.  In his August 2009 VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability), he reported having a high school education and having worked in the field of maintenance from 1987 to 2003.  In his September 2014 TDIU application, he reported working as a custodian from 2006 to 2007.  These are physical jobs.  As the evidence suggests that the Veteran is unable to work due to his service-connected disabilities, the Board finds that consideration of an extraschedular TDIU in the first instance is necessary.   

The matters are REMANDED for the following action:

1. Refer the issue of entitlement to a TDIU to the Director of the Compensation Service for extraschedular consideration.  See 38 C.F.R. § 4.16(b).

2. Then, readjudicate the issue on appeal.  If the benefit is denied, issue a supplemental statement of the case and allow appropriate time for response.  Then, return the case to the Board.

 

 

D. Martz Ames

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	R. Brunot, 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.