Citation Nr: 22014682 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 19-15 006 DATE: March 14, 2022 REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from July 1977 to July 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a rating decision issued by the U.S. Department of Veterans Affairs (VA) Regional Office (RO). In May 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A copy of the transcript has been associated with the electronic claims file. The Veteran has contended that he is unable to obtain and maintain substantially gainful employment as a result of his service-connected disabilities, primarily his lower back disability with radiculopathy and bilateral plantar fasciitis. A TDIU award of benefits may be granted where the schedular rating is less than total, but when it is found that the claimant 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 this case, the Veteran is service connected for a lower back disability (20 percent rating), lumbar radiculopathy (10 percent), gastroesophageal reflux disease (GERD) (10 percent), a right shoulder disability (noncompensable), a right thumb disability (noncompensable), bilateral plantar fasciitis (noncompensable), residuals of a laryngoscopy (noncompensable), and residuals of a kidney stone (noncompensable). His combined disability rating is 40 percent. Thus, the Veteran does not meet the schedular criteria for a TDIU. A TDIU may be granted, however, on an extra-schedular basis under § 4.16(b) if it is established that the Veteran is indeed unemployable on account of his service-connected disabilities. However, the Board is precluded from granting a TDIU on an extra-schedular basis in the first instance and must refer the matter to the Director of Compensation Service for the initial adjudication. See 38 C.F.R. § 4.16 (b); Barringer v. Peake, 22 Vet. App. 242 (2008). If, and only if, the Director of the Compensation Service or designee determines that an extra-schedular TDIU is not warranted does the Board then have jurisdiction to decide the extra-schedular claim on its merits. Here, as noted above, the Veteran contends that he stopped working due to his service-connected lower back disability with radiculopathy, and bilateral plantar fasciitis. The record shows the Veteran last worked as a janitor in August 2014. Previously, he worked as a truck driver and in security overseas. In a January 2015 letter, the VA Veteran Readiness & Employment Division stated that achievement of employment was not reasonably feasible for the Veteran. The letter cited the Veteran's service-connected lower back disability, noting that the Veteran had difficulty sitting and standing for prolonged periods, ambulated with a cane, could not lift more than 10 pounds, and had difficulty performing most physical activities. In addition, the letter cited the Veteran's non-service-connected heart condition, noting he had had two heart attacks and a stent placement, was on blood thinners, and had difficulty with stamina, fatigue, and blackouts. The letter further cited the Veteran's non-service-connected diabetes, noting that this condition caused lethargy and susceptibility to falls and periods of fatigue. For these reasons, the letter stated, the Veteran would be at an extreme disadvantage when applying for jobs, which would mean competing against non-disabled applicants. The Board also notes that the Social Security Administration has determined the Veteran became disabled in February 2015 due to a primary diagnosis "anxiety related disorders" and a secondary diagnosis of "disorders of the back (discogenic and degenerative)." The record also shows the Veteran has received regular steroid injections for his lower back disability with radiculopathy during the period of the claim. Under these circumstances, the Board finds that referral of the issue of entitlement to a TDIU to the Director of the Compensation Service for initial adjudication is warranted. In addition, the Board notes that at his May 2021 hearing, the Veteran indicated he had applied for vocational rehabilitation at a private facility in Mobile, Alabama in 2014 or 2015 and was determined to be unfit to work. Upon review, records from this facility have not been associated with the claims file. As such, efforts should be made to obtain these records on remand. The matters are REMANDED for the following actions: 1. Undertake all indicated development to obtain outstanding private and VA treatment records, to include records from a vocational rehabilitation facility in Mobile, Alabama, in 2014 and/or 2015. 2. Refer the issue of entitlement to TDIU to the Director of Compensation Service for consideration of assignment of a TDIU on an extra-schedular basis pursuant to 38 C.F.R. § 4.16 (b). Prior to submission of the claim to the Director of Compensation Service, prepare a full statement as to the Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue of entitlement to TDIU. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Hampton, 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.