Citation Nr: 22012273 Decision Date: 03/03/22 Archive Date: 03/03/22 DOCKET NO. 12-14 480A DATE: March 3, 2022 REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) prior to June 1, 2012, is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1968 to August 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Furthermore, the Board notes that the Veteran explicitly raised the issue of entitlement to a TDIU and asserted that his service-connected disabilities cause his inability to work. See 12/9/2009 VA 21-4138; see also Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Once the issue of entitlement to a TDIU is raised, it is "part of the claim for benefits for the underlying disability." Id. Therefore, the issue of the Veteran's entitlement to a TDIU is properly before the Board. This appeal has a long procedural history and has been before the Board previously, to include in March 2015 and June 2018. Thereafter, the Veteran appealed to the United States Court of Appeals for Veteran's Claims (Court). In an October 2019 Joint Motion for Partial Remand (JMPR), the parties agreed to vacate and remand the part of the June 2018 Board decision that denied the Veteran's claims for service connection for hypertension and a skin disability. The Court granted the JMPR in an October 2019 Order, vacated the June 2018 Board decision, and remanded the appeal back to the Board. Later, in November 2020 and April 2021, the Board remanded the issue on appeal for further evidentiary development. Most recently, in August 2021, the Board remanded the issue of a TDIU due to noncompliance with the April 2021 Board remand directives; the agency of original jurisdiction (AOJ) did not implement the grant of service connection for a skin disability, so that the combined rating of the Veteran's service-connected disabilities could be ascertained for purposes of adjudicating the claim for a TDIU. As such, after a November 2021 supplemental statement of the case considered the record, this matter was returned to the Board for appellate consideration. The Board finds there has been substantial compliance with its prior remand directives as the AOJ implemented the grant of service connection for a skin disability in an August 2021 rating decision and adjudicated the issue of a TDIU. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). While the appeal for a TDIU was pending, the August 2021 rating decision granted entitlement to a TDIU, effective November 17, 2020. Subsequently, a November 2021 rating decision granted entitlement to an earlier effective date of June 1, 2012, for the grant of a TDIU. This grant did not encompass the entirety of the period on appeal; therefore, entitlement to a TDIU prior to June 1, 2012, is still before the Board. A TDIU prior to June 1, 2012. As mentioned above, the Veteran asserted that his service-connected disabilities caused his inability to work. See 12/9/2009 VA 21-4138; see also 12/16/2014 Hearing Testimony, at pages 19, 39, and 41. In this regard, in formal TDIU applications, the Veteran has indicated that he last worked in February 2005. See 1/4/2010, 9/26/2019, & 3/13/2021 VA 21-8940. However, for the period prior to June 1, 2012, the Veteran does not meet the schedular percentage requirements for a TDIU under 38 C.F.R. § 4.16(a), 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). Nevertheless, VA policy is to grant a TDIU in all cases where service-connected disabilities preclude gainful employment, regardless of the percentage evaluations. 38 C.F.R. § 4.16(b). However, the Board is prohibited from assigning a TDIU on the basis of 38 C.F.R. § 4.16(b) in the first instance without ensuring that the claim is referred to VA's Director of Compensation Service for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b). Bowling v. Principi, 15 Vet. App. 1, 10 (2001); Wages v. McDonald, 27 Vet. App. 233, 236 (2015). As such, the Board finds this matter is to be remand for referral to the Director for an initial determination as there is sufficient evidence to substantiate a reasonable possibility that the Veteran is unemployable due to service-connected disabilities. See Snider v. McDonough, 35 Vet. App. 1 (2021). (CONTINUED ON THE NEXT PAGE) This matter is REMANDED for the following action: Refer the matter of a TDIU on an extraschedular basis prior to June 1, 2012 under 38 CFR § 4.16(b) to the Director of Compensation Service for adjudication and notify the Veteran of such action. After completion of the above development and any additionally indicated development, readjudicate the TDIU on an extraschedular basis. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.F., 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.