Citation Nr: 21041364 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 17-20 915 DATE: July 8, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to March 17, 2016, is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1965 to November 1967, including service in the Republic of Vietnam. As a result of his military service, the Veteran received the Combat Infantryman Badge, among other decorations. This matter comes before the Board of Veterans' Appeals (Board) from a July 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) of the Veteran's Benefits Administration (VBA), which is the Agency of original Jurisdiction (AOJ). The Veteran expressed disagreement with this determination, and the present appeal ensued. In a March 2017 Decision Review Officer (DRO) decision, the AOJ established TDIU from March 17, 2016. As this claim was filed during pendency of several appealed issues seeking increased evaluation which were received by VA much earlier than the effective date of the award of TDIU, the AOJ's actions represented a partial allowance of the benefits sought, and thus, the issue remained in appellate status, and it has been characterized as stated on the title page to accurately reflect the benefits sought. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009); Payne v. Wilkie, 31 Vet. App. 373 (2019); Harper v. Wilkie, 30 Vet. App. 356 (2018). The Veteran's appeal was previously before the Board in January 2019, June 2020, and March 2021, when it was determined that remand was necessary to ensure that VA fulfilled its duty to assist the Veteran in substantiating his appeal. The Board's prior remand directives and the subsequent actions of the AOJ will be discussed below. The Veteran's appeal has been returned to the Board for further appellate consideration. Entitlement to a TDIU prior to March 17, 2016, is remanded. Although the Board regrets additional delay, remand is necessary to obtain an opinion on the Veteran's employability prior to March 17, 2016. The Veteran claims that he has been unable to work since 2009 due to his service-connected lumbar spine disability. In April 2014, the Veteran underwent a VA examination. The examiner stated that the Veteran is currently retired due to his back and leg pain being so problematic. In June 2014, a second VA examiner stated that the Veteran is unable to perform his duties due to his back. In March 2016, a VA examiner stated that the Veteran would not be able to do work that required prolonged standing, bending, walking, or lifting. He would be able to do sedentary work if able to move frequently during the day. In March 2021, this issue was remanded to the Director for Compensation for extraschedular consideration. The Director determined that the Veteran's claim for TDIU did not warrant extraschedular consideration. Although the Board will take into consideration the Director of Compensation's opinion, it is not bound by it. As such, the Board finds that it is unclear if the Veteran was unemployable prior to March 17, 2016. The issue is remanded to obtain an opinion on whether the Veteran's service-connected disabilities prevented him from obtaining and maintaining substantially gainful employment prior to March 17, 2016. The matters are REMANDED for the following actions: 1. Transfer the Veteran's file to an appropriate examiner for an opinion on the impact of the Veteran's service-connected disabilities (individually and in concert with each other) on his employability prior to March 17, 2016. The examiner should note that the file has been reviewed. If examination of the Veteran is necessary to respond to the inquiries, one should be scheduled. In the report of the examination, the examiner should assess the functional impairment caused by the Veteran's service-connected disabilities, either singularly or jointly, on his ordinary activities, to include his employability, taking into consideration his level of education, special training, and previous work experience, but not his age or any impairment caused by nonservice-connected disabilities. 2. Thereafter, the AOJ must readjudicate the Veteran's appealed issue in light of the totality of evidence of record. If any benefit sought is not granted to the fullest extent, the AOJ must provide the Veteran and his representative with a copy of the readjudication and afford them an appropriate period to respond. SCOTT W. DALE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Hofmeister 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.