Citation Nr: 25003546 Decision Date: 03/13/25 Archive Date: 03/13/25 DOCKET NO. 11-29 579 DATE: March 13, 2025 REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service from January 1968 to December 1969. This matter returns to the Board of Veterans' Appeals (Board) following the issuance of a July 2024 Board remand which directed the Agency of Original Jurisdiction (AOJ) to undertake additional development. The claims were also subject to a Joint Motion for Remand (JMR) from the Court of Appeals for Veterans Claims (CAVC) in March 2022. 1. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. The Veteran seeks entitlement to TDIU. After a review of the evidence of record, the Board concludes that the claim must be remanded to ensure that the Veteran is afforded full due process. The Veteran has claimed that he has been unable to sustain substantially gainful employment since March 2016. The Board observes that he does not fully meet the TDIU criteria during the full period on appeal. (a single service-connected disability ratable at 60 percent or more, or 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.). However, there is no indication that as a part of adjudicating the Veteran's claim, that the AOJ sought an extraschedular opinion. The Board cannot grant an extraschedular TDIU in the first instance but may determine whether referral for such consideration is warranted. Recent development from the Court of Appeals for Veterans' Claims (CAVC) has held that, pursuant to Ray v. Wilkie, 31 Vet. App. 58, 66 (2019), the proper standard for the initial decision of whether to refer the issue of entitlement to a TDIU to the Director of Compensation under 38 C.F.R. § 4.16 (b) is whether there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities." Snider v. McDonough, No 19-7607 (Vet. App., Nov. 19, 2021). The Board interprets this as a low bar requiring extraschedular consideration be afforded liberally when there is any evidence the Veteran's disability(ies) could reasonably be argued affect the Veteran's unemployability. The Board finds there is sufficient evidence that may substantiate a reasonable possibility the Veteran service-connected disabilities interfere(d) with his employability such that this matter should be referred for extraschedular consideration. Specifically, the AOJ made findings that the Veteran was unemployed at the time of rating decisions on appeal. Additionally, the Veteran had service-connected disabilities, including PTSD, bilateral hearing loss, a neck disability, and a low back disability at the time of the rating decision on appeal. Any one of these conditions or a combination thereof reasonably raise a possibility that they may interfere with the Veteran's employability. As such, the Veteran's claim must be remanded so that he can be afforded all due process. The matters are REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900 (c). Expedited handling is requested.) 1. Invite the Veteran to submit evidence in support of his claim. Provide the Veteran with a new VA Form 21-8940 if necessary for adjudication and/or requested by the Veteran. 2. Forward the claims file to the Director of Compensation and Pension Services for consideration in the first instance of entitlement to TDIU on an extraschedular basis. JIMMY L. BARDIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Hernan, 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.