Citation Nr: 22008028 Decision Date: 02/11/22 Archive Date: 02/11/22 DOCKET NO. 14-03 149 DATE: February 11, 2022 REMANDED Entitlement to total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1969 to March 1971. In March 2021, the Court of Appeals for Veterans Claims (CAVC) vacated the Board's September 2019 opinion denying the Veteran's claim for TDIU. Specifically, CAVC held that "The Board failed to independently assess whether the appellant was 'capable of performing the physical and mental acts required by employment'... Instead, the Board merely adopted the VA examiner's conclusions, abdicating its duty to determine whether the appellant was actually employable." The Veteran's representative submitted third party correspondence for Board's consideration after the first extension period ended. The representative states that the Board's denial of a second extension was received a month after it was dated and therefore the new submission should be considered timely. See Third Party Correspondence, received December 28, 2021. The Board agrees and permits the submission. 1. Entitlement to total disability rating based on individual unemployability (TDIU) Total disability ratings for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more or, as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In evaluating entitlement to a TDIU, the central inquiry is "whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled. The Veteran claims that his service-connected disorders entitle him to TDIU. The Veteran is service-connected for posttraumatic stress disorder (PTSD), rated at 50 percent from March 16, 2011, and tinnitus, rated at 10 percent from March 16, 2011. The Veteran is also service-connected with a noncompensible rating for the following disorders: bilateral hearing loss, from March 20, 1971; malaria, from September 9, 1972; and scar on chest from March 16, 2011. He has a combined rating of 60 percent beginning March 16, 2011. While the Veteran has two or more disabilities, the combined rating is not 70 percent or higher, and his service-connected disabilities do not warrant consideration as one disability because they are not of one or both upper or lower extremities, do not result from a common etiology or single accident, affect a single body system, represent multiple injuries incurred in action, or represent multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). Therefore, the Veteran does not meet the schedular criteria for TDIU. Nevertheless, the Board may adjudicate whether a referral to the Director of Compensation Service is warranted when the issue is either raised by the claimant or is reasonably raised by the evidence of record. See Thun v. Peake, 22 Vet. App. 111, 115 (2008); Barringer v. Peake, 22 Vet. App. 242 (2008). In such case, the Board's analysis is limited to granting or denying the referral for TDIU on an extraschedular basis under § 4.16(b). Anderson v. Shinseki, 22 Vet. App. 423, 428-29 (2009). That is, where there is plausible evidence that a claimant is unable to secure and follow a substantially gainful occupation and where there is not any affirmative evidence to the contrary, the claimant's case is eligible for consideration under 38 C.F.R. § 4.16(b) by referral to the Director of Compensation Service. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). After review of the file, the Board concludes that referral is proper. In particular the Board notes the December 2021 vocational opinion from A.G., a vocational rehabilitation consultant, who found that the Veteran could not secure and follow substantially gainful employment. The opinion notes that the Veteran had significant difficulty retaining employment. A.G. reasoned that the Veteran's social impairment would impede his ability to work effectively, particularly his ability to focus and learn new information or work skills. The consultant also noted the Veteran's skills from construction would not be transferrable to a job outside of the industry. Moreover, the Board observes that the Veteran reported in his October 2011 VA Form 21-8940 that his highest level of education is high school, and he had no other education or training before he became too disabled to work. Based on review of the file, as well as the provided medical and lay evidence, the Board concludes that the evidence is sufficient to warrant referral to the Director of Compensation Service for consideration under 38 C.F.R. § 4.16(b). The matters are REMANDED for the following action: 1. Refer the issue of TDIU on an extraschedular basis to the Director of the Compensation Service for action in accordance with 38 C.F.R. § 4.16(b). David Gratz Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jonah Nelson, 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.