Fisher v. Principi — VA must specifically adjudicate extraschedular TDIU referral under 38 C.F.R. § 4.16(b) when raised by the record

The appellant sought an increased rating for hypertensive cardiovascular disease and a total disability rating based on individual unemployability. The Court found a plausible basis for the Board’s denial of a schedular increase under Diagnostic Code 7007 because the evidence did not show the criteria for a 60% rating, including marked heart enlargement, diastolic pressure readings of 120 or more, dyspnea on exertion, or preclusion of more than light manual labor. The Court therefore affirmed that portion of the Board’s decision.

The Court separately held that the Board erred by failing to adjudicate the applicability of 38 C.F.R. § 4.16(b). Although the veteran did not meet the schedular percentage requirements of § 4.16(a), the record contained evidence that could support extraschedular consideration, including employment limitations, heavy medication, and limited vocational capacity. The Court explained that when such exceptional or unusual factors are present, the RO must specifically decide whether referral to the Director of Compensation and Pension Service is warranted, and the Board must provide reasons or bases for that determination. Because the Board did not address referral under § 4.16(b), remand was required.

If the record raises exceptional or unusual circumstances suggesting that service-connected disability may render a veteran unable to secure and follow substantially gainful employment, VA must specifically adjudicate whether referral for extraschedular TDIU consideration under 38 C.F.R. § 4.16(b) is warranted.

A veteran who fails to meet schedular TDIU percentages can still be entitled to referral for extraschedular consideration when the evidence suggests service-connected unemployability. The Board must address that referral question expressly and provide reasons or bases.

Fisher is an early and important TDIU referral case. It shows that the extraschedular route under § 4.16(b) is not optional when the evidence reasonably raises it, and it reinforces that the Board must separately analyze referral rather than treating schedular ineligibility as the end of the inquiry.

Failing to consider whether referral for extraschedular TDIU under 38 C.F.R. § 4.16(b) is warranted when the veteran does not meet schedular percentages but the record suggests unemployability.

A veteran with a 30% service-connected disability is denied TDIU because the schedular threshold is not met, even though the record shows severe work restrictions, heavy medication, and vocational limitations. Fisher supports remand for explicit consideration of referral under § 4.16(b).

Use Fisher to argue that the Board or RO must separately address extraschedular TDIU referral whenever the record contains evidence of exceptional employment impairment from service-connected disability, even if § 4.16(a) is not satisfied.

38 C.F.R. § 4.16(b), 38 C.F.R. § 3.321(b)(1), Gilbert v. Derwinski