Citation Nr: 22018772 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 99-11 196A DATE: March 30, 2022 REMANDED A total disability rating based on individual unemployability is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from November 1973 to November 1975, and from March 1976 to November 1976. He also served on active duty in the Army National Guard from June 1992 to March 1994, with additional periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). 1. TDIU Procedurally, the Veteran's claim for TDIU has a long history. It was first found to be raised in an October 2005 Board decision in conjunction with a claim for an initial increased rating for a back disability. At the time, the issue was referred to the RO for appropriate action. The issue of a TDIU was again referred to the RO in an April 2008 Board decision. In an April 2010 Board decision, the issue of a TDIU was remanded as the RO had not yet considered the claim. The Board remanded the issue of a TDIU again in December 2011, October 2013, July 2016, June 2018, and May 2021. Thus, in conjunction with prior claims for increased ratings, a claim for entitlement to a TDIU has been found to be raised by the record pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran met the schedular rating criteria for a TDIU as of October 22, 2018. However, during the appeal period prior to October 22, 2018, there are periods of time during which the Veteran did not meet the schedular rating criteria for a TDIU. The Veteran's record reflects that he last worked in 1994, and that he receives social security disability, which he was initially entitled to as of September 1994. In a July 2001 VA back examination, it was noted that the Veteran utilized a cane and a back brace. Due to his back pain, the examiner indicated that the Veteran was unable to do household chores. In a December 2003 back examination, the examiner noted that that the Veteran utilized a cane and was only able to walk for about five to ten minutes. Additionally, the examiner indicated that the Veteran needed assistance to dress and bathe his lower body. In a February 2008 VA examination, the examiner provided a rating scale on how the Veteran's back disability effected his daily activities on a range between mild and prevents. For feeding and toileting, the rating was noted as mild. For chores, shopping, exercise, traveling, bathing, dressing, and grooming, the rating was noted as severe. For sports and recreation, the rating was noted as prevents. A private medical opinion was submitted in January 2014, in which the Veteran was noted to have been totally disabled due to his low back pain since March 1994. It was indicated in the opinion that the Veteran was totally disabled due to back pain, bilateral knee problems, and depression. While the Veteran is not service-connected for any psychiatric disabilities, in addition to his back disability, the Veteran is also service-connected for bilateral knee disabilities. In the most recent VA examinations in February 2022, the examiner noted that due to the Veteran's back disability he would be limited with no twisting, bending, heavy lifting, carrying, pushing, pulling, or prolonged standing or walking. In relation to the Veteran's bilateral knee disabilities, he would be limited with no prolonged walking or standing. As the Veteran does not meet the schedular rating criteria for the entirety of the period on appeal, and in light of the January 2014 private medical opinion suggesting that the Veteran was totally disabled for reasons that included his service-connected back disability and bilateral knee disabilities, and the indications within VA examinations pertaining to the effects on the Veteran's functional ability from his service-connected back disability and knee disabilities, the Board finds that referral to the Director of Compensation Service for extraschedular consideration is warranted. It is important to observe here that in remanding the issue for referral to the Director of Compensation Service, the Board declines to take any position at this time as to whether the assignment of an extraschedular TDIU is warranted. That is, the Board is not making any concrete findings that the extraschedular criteria are met. Rather, the Board is remanding the claim to allow the Veteran two bites at the proverbial apple. First the Director of Compensation will have an opportunity to consider the case, and then if it is denied, the Board will have another opportunity to consider the issue. The matter is REMANDED for the following action: Refer the issue of a TDIU to the Director of Compensation Service for extraschedular consideration. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Lutgens-Staley, 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.