Citation Nr: 22018975 Decision Date: 03/31/22 Archive Date: 03/31/22 DOCKET NO. 16-03 875A DATE: March 31, 2022 REMANDED Entitlement to a total disability rating due to individual unemployability (TDIU) on an extraschedular basis prior to June 25, 2019, is remanded. REASONS FOR REMAND The Veteran had active military service from August 1977 to May 1992. This case comes before the Board of Veterans' Appeals (Board) on appeal of a March 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This case was most recently before the Board in September 2020, at which time the Board granted entitlement to a TDIU from June 25, 2019. The Veteran appealed the September 2020 decision to the United States Court of Appeals for Veterans Claims (Court). In an April 2021 Order, the Court granted a Joint Motion of the parties, vacated the Board's implicit decision that a TDIU was not warranted prior to June 25, 2019, and remanded the case to the Board for action consistent the Joint Motion. In June 2019, the Veteran testified at a hearing before Veterans Law Judge (VLJ) Clementi. A transcript of that hearing is of record. In July 2021, subsequent to the Court's April 2021 Order, the Veteran requested another Board hearing. In October 2021, the Veteran testified at a hearing before VLJ Haddock. A transcript of that hearing is of record. During the October 2021 Board hearing, the Veteran waived his right to testify before a third VLJ. As such, the Board will proceed with a panel decision with a third VLJ who did not conduct a hearing but has reviewed the record including the transcripts on file. Arneson v. Shinseki, 24 Vet. App. 379 (2011). TDIU The Veteran asserts that his service-connected disabilities prevent him from maintaining substantially gainful employment. At the outset, the Board notes that the Veteran was assigned a temporary 100 percent rating for his service-connected right shoulder disability for purposes of convalescence for the period from October 31, 2016, through January 31, 2017. As such, the Board has limited its consideration of entitlement to a TDIU for the period prior to June 25, 2019, accordingly. For the period on appeal prior to June 25, 2019, the Veteran's combined disability rating was less than 70 percent, except for the period of assignment of a temporary total rating described above. As such, he did not meet the schedular criteria for assignment of a TDIU prior to June 25, 2019. However, 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. 38 C.F.R. § 4.16. When a Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities but does not meet the percentage requirements for a TDIU of 38 C.F.R. § 4.16 (a), the case may be referred to appropriate VA officials for consideration of assignment of TDIU. 38 C.F.R. § 4.16 (b). The evidence of record reveals that the Veteran worked as a truck driver from 1995 to 2011 and loaded and unloaded freight prior to that time. The Veteran reportedly became too disabled to work in August 2011. The Veteran reported that he stopped working as a result of his right and left knee disabilities, and multiple disabilities affecting the left upper extremity. The Veteran has a high school education, and there is no indication from the record that he has had any other education or industrial training. In a July 2014 Social Security Administration (SSA) benefits evaluation, the Veteran stated that he had problems using his left arm and legs. At that time, he explained that his problems were due to a history of pulmonary embolism, deep vein thrombosis, and arthritis. Additionally, the Veteran stated that he could not do things such as mow the lawn, wash the car, walk for long distances, or stand for long periods of time. Further, the Veteran noted that he took longer to do simple tasks and that the side effects of his medication affected his ability to care for himself. At that time, a reviewing physician noted that the Veteran's disabilities allowed for a limited range of light work. In 2015, the Veteran was treated on multiple occasions for bilateral knee pain. Collectively, the Veteran complained of pain and swelling that was worsened when coming down the stairs and that his swelling resulted in difficulty walking. He also reported that his knee pain worsened with resuming activity following prolonged sitting. In a December 2015 treatment note, the Veteran was advised to rest and avoid the following: bending, turning, exercise, jogging, walking, heavy lifting, and prolonged standing. He was also advised to conduct activity only as tolerated. A July 2018 treatment note documented that the Veteran's knees were tender to palpation and that he ambulated with a limp and a cane. During the June 2019 Board hearing, the Veteran's wife testified that he walked with a cane, even around the house. Additionally, she indicated that the Veteran had issues transitioning to standing positions after being seated for a long period of time. Based on the foregoing, the evidence of record suggests that the Veteran may have been prevented from obtaining and maintaining gainful employment as a result of his service-connected disabilities prior to June 25, 2019. Accordingly, the claim for entitlement to a TDIU prior to June 25, 2019, must be remanded for referral to the Director of Compensation Service for consideration on an extraschedular basis. 38 C.F.R. § 4.16 (b) (2020). The matters are REMANDED for the following action: 1. Refer the issue of entitlement to a TDIU prior to June 25, 2019, to the Director of Compensation Service for extraschedular consideration pursuant to 38 C.F.R. § 4.16 (b). 2. Then, readjudicate the appeal. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Byrd, 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.