Citation Nr: 22018248 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 09-14 012 DATE: March 28, 2022 ORDER Entitlement to a total rating based on individual unemployability due to service-connected disabilities on a schedular basis from August 31, 2012, is granted. REMANDED Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities on an extraschedular basis prior to August 31, 2012, is remanded. FINDINGS OF FACT 1. In the Board's September 2011 decision, a positive finding of fact was made that the issue of entitlement to a TDIU was reasonably raised by the record based upon the Veteran's initial increased rating claim for a right knee disability. 2. As of August 31, 2012, the Veteran has presented with at least one disability rated at 40 percent or more with a combined rating for his service-connected disabilities of 70 percent or greater. 3. In the Board's January 2018 decision, a positive finding of fact was made that the Veteran's service-connected disabilities have precluded his substantial and gainful employment since August 31, 2012. CONCLUSION OF LAW The criteria for an award of TDIU on a schedular basis from August 31, 2012, have been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16(a) (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from July 2005 to October 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2011, the Veteran testified in a hearing before a Veterans Law Judge (VLJ) who is no longer employed with the Board. Through subsequent adjudication of the present issue, the Veteran opted to have an additional hearing before the undersigned VLJ in November 2017. Transcripts of both hearings have been associated with the claims file. In September 2011, January 2018, March 2020, March 2021, and October 2021, the Board remanded this claim for additional development. The case has now been returned to the Board for further appellate action. Entitlement to a TDIU From August 31, 2012 The Veteran contends that his service-connected disabilities prevent him from obtaining and maintaining substantially gainful employment. The Veteran was in receipt of a TDIU from April 6, 2017, to May 1, 2020. The grant of this benefit was based upon the Board's January 2018 decision, finding that entitlement to a TDIU had been established by the record from August 31, 2012. A December 2018 rating decision implemented the Board's grant of a TDIU, but with an April 6, 2017, effective date, based upon the date of receipt of the Veteran's express claim for a TDIU. An April 2020 rating decision discontinued the TDIU, effective May 1, 2020. The Veteran did not perfect an appeal as to that decision. Accordingly, the issue of entitlement to a TDIU from May 1, 2020, is not presently before the Board as an express claim and is not raised by the record pursuant to Rice v. Shinseki, 22 Vet. App. 47 (2009), as a claim for a higher evaluation of a service-connected disability is not presently pending on appeal. As to the issue on appeal, a favorable finding has already been made by the Board that, "the combined impact of the Veteran's service-connected disabilities have precluded his substantial and gainful employment..." since August 31, 2012. See January 2018, Board Decision. This favorable finding of fact previously set forth by the Board will not be set aside. Furthermore, it is confirmed that as of August 31, 2012, the Veteran has met the preliminary schedular criteria for entitlement to a TDIU. The Veteran is service connected for: migraine headaches associated with generalized tonic clonic convulsive disorder, rated at 50 percent disabling; degenerative disc disease of the lumbar spine, rated at 40 percent disabling; generalized tonic clonic convulsive disorder, rated at 40 percent; and a right knee disability, rated at 10 percent. The Veteran's combined rating has been 80 percent since August 31, 2012. Thus, the schedular criteria for a TDIU rating pursuant to 38 C.F.R. § 4.16 (a) have been met since August 31, 2012. Finally, the Board's September 2011 decision made the favorable finding that the issue of entitlement to a TDIU had been reasonably raised by the record based upon the Veteran's filing of an increased rating claim for his service-connected right knee disability. Although this finding was set forth in a preliminary remand order, the Board declines setting aside this prior determination. Moreover, since the Board's September 2011 decision which raised the issue of entitlement to a TDIU pursuant to Rice, the claim has been continuously adjudicated. After the September 2011 Board decision, a May 2016 supplemental statement of the case denied entitlement to a TDIU, and the issue was returned to the Board. See May 2016, VA Form 8. The Veteran submitted a VA Form 21-8940 in April 2017, providing relevant employment history, and thereby creating an express claim for entitlement. Nevertheless, the issue was already pending before the Board. The Board's January 2018 decision made the determinations outlined above, the December 2018 rating decision implemented the TDIU, effective April 6, 2017, and the issue of entitlement to a TDIU was returned to the Board in March 2020. Board decisions from March 2020, March 2021, and October 2021, remanded the claim. The Board hereby incorporates the portion of the January 2018 decision which details and outlines the extent of the Veteran's disabilities which, as the Board already found, have precluded him "from obtaining and maintaining any form of substantially gainful employment" from August 31, 2012. See January 2018, Board Decision (pgs. 3-5, herein incorporated by reference). Accordingly, TDIU on a schedular basis from August 31, 2012, is granted. REASONS FOR REMAND Entitlement to a TDIU rating on an extraschedular basis for the period prior to August 31, 2012. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. When percentage standards for consideration of TDIU on a schedular basis are not met, consideration may be given to entitlement on an extraschedular basis, taking into account such factors as the extent of the service-connected disability, and employment and educational background. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.321, 3.341, 3.341, 4.16, 4.19. The Board itself cannot assign an extraschedular rating in the first instance. Floyd v. Brown, 9 Vet. App. 88, 96 (1996). However, the Board can adjudicate whether to refer a case to the Director for an extraschedular evaluation when the issue is either raised by the claimant or is reasonably raised by the evidence of record. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If, and only if, the Director determines that an extraschedular evaluation is not warranted, does the Board then have jurisdiction to decide the extraschedular claim on the merits. Anderson v. Shinseki, 22 Vet. App. 423, 427-8 (2009). The Board notes that for the period on appeal prior to August 31, 2012, the Veteran was in receipt of a combined 50 percent disability rating made up of the following service-connected disabilities and assigned ratings: lumbar spine disability, rated at 40 percent; right knee sprain, rated at 10 percent; generalized tonic clonic convulsive disorder, rated at 10 percent. However, the Board finds that referral for extraschedular consideration is warranted. The Veteran provided evidence of his employment status during that period and also provided medical and lay evidence concerning the listed disabilities' impact on his ability to maintain employment. In light of the aforementioned evidence and disability ratings, the Board finds that additional development may demonstrate that the Veteran was unable to secure or follow a substantially gainful occupation during the period on appeal prior to August 31, 2012. Thus, a remand is necessary in order to make an effort to complete this additional development. The Board does note, however, that the repeated attempts to obtain Social Security Administration (SSA) records have been in vain. A thorough review of the claims file reveals that reference to such records was in error as the SSA has repeatedly responded that the Veteran has not been in receipt of SSA benefits. Rather, the incorrect SSA record, with a different social security number and birthdate, was erroneously referenced in the Veteran's claims file. This red herring, which has led to years of delay in adjudicating the Veteran's claim (see March 2020, March 2021, and October 2021, Board Remand Decisions), was not dispelled by the Veteran. Unless notified by the Veteran that his SSA status has changed since the most recent January 2022 report of information from the SSA office, no additional attempts need be made as it would be futile. This matter is REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Refer the Veteran's case to the VA's Director of Compensation Service for extraschedular consideration of the Veteran's TDIU claim pursuant to 38 C.F.R. § 4.16(b), prior to August 31, 2012. If the benefit sought remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. The Veteran and his representative must be given an adequate opportunity to respond. Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Sutherell, 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.