Citation Nr: 1802601 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-14 927 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to a total disability rating due to individual unemployability (TDIU) prior to March 8, 2016. REPRESENTATION Veteran represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD R. Kettler, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1989 to July 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. During the course of the appeal, the claims file was transferred to the RO in Winston-Salem, North Carolina, which now has jurisdiction over the claims on appeal. The Board remanded the claim in February 2017 for additional development. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Although further delay is regrettable, the Board finds that additional development is necessary prior to appellate review. The law provides that a total disability rating may be assigned where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a) (2017). In this case, prior to March 8, 2016, the Veteran is service connected for post-traumatic stress disorder (PTSD), rated as 50 percent disabling. In light of the above, the Board notes that the Veteran does not meet TDIU schedular criteria prior to March 8, 2016. A review of the record demonstrates that the Veteran was laid off work in December 2009 and has lost numerous other jobs because of his health condition. See October 2012 Statement in Support of Claim. The April 2012 VA PTSD examination reveals that psychiatric symptoms include anxiety, panic attacks, depressed mood, chronic sleep impairment, memory issues, difficulty establishing and maintaining effective work relationships, and overall occupational and social impairment. These symptoms have been chronic and present throughout the appeal period. A March 2014 P. D. Mental Health Center treatment record indicated the Veteran was unable to stay long at any type of job. The Veteran's affect was flat and he was found to have problems with motivation and completing tasks. Where a Veteran is unemployable by reason of his or her service-connected disabilities, but they fail to meet the percentage standards set forth in § 4.16(a), TDIU claims should be submitted to the Director, Compensation Service, for extraschedular consideration. 38 C.F.R. § 4.16(b). Therefore, the Board is precluded from assigning a TDIU rating on an extraschedular basis in the first instance. Instead, the Board must refer any claim that meets the criteria for referral for consideration of entitlement to TDIU on an extraschedular basis to the Director, Compensation Service. Bowling v. Principi, 15 Vet. App. 1 (2001). Accordingly, the case is REMANDED for the following action: 1. Refer the claim to the Director, Compensation and Pension Service, for consideration of whether a TDIU is warranted prior to March 8, 2016, on an extraschedular basis. 2. After completing this and any other development deemed necessary, readjudicate the issue of entitlement to a TDIU prior to March 8, 2016. If the benefit sought on appeal remains denied, issue the Veteran and his representative a supplemental statement of the case and provide a reasonable opportunity to respond before the case is returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ Michael J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).