Citation Nr: 18140521 Decision Date: 10/03/18 Archive Date: 10/03/18 DOCKET NO. 10-27 153 DATE: October 3, 2018 REMANDED Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities prior to October 22, 2009 is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1967 to March 1970. Service in the Republic of Vietnam is indicated by the record. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. In Board decisions dated April 2011 and March 2016, the claim was remanded for further evidentiary development. The VA Appeals Management Center (AMC) most recently continued the previous denial in a February 2018 supplemental statement of the case (SSOC). The Veteran’s VA claims file has been returned to the Board for further appellate proceedings. 1. Entitlement to a TDIU prior to October 22, 2009 is remanded. The Veteran has been awarded a TDIU from October 22, 2009; however, he asserts that he is entitled to a TDIU prior to October 22, 2009. See the Informal Hearing Presentation dated September 2018. As indicated in the April 2011 Board decision, a TDIU claim was raised along with the Veteran’s claim of entitlement to a higher initial rating for service-connected PTSD pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). To this end, the Veteran is assigned a 50 percent rating for his service-connected PTSD, effective from June 30, 2005 and a 100 percent rating from November 21, 2008. For the period prior to October 22, 2009, the Veteran is also service-connected for diabetes mellitus at 20 percent, peripheral neuropathy of the bilateral upper extremities at zero percent from April 21, 2009, peripheral neuropathy of the bilateral lower extremities at zero percent, from April 21, 2009, tinnitus at 10 percent from April 4, 2008, and bilateral hearing loss at zero percent from April 4, 2008. His combined rating is 60 percent from June 30, 2005, and 100 percent from November 21, 2008. For the period from November 21, 2008, the Veteran is in receipt of a 100 percent rating for service-connected PTSD. In this regard, the Board recognizes that the receipt of a 100 percent schedular rating for a service-connected disability does not necessarily render moot any pending claim for a TDIU. Bradley v. Peake, 22 Vet. App. 280 (2008). Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, a separate award of a TDIU predicated on a single disability may form the basis for an award of special monthly compensation. The Bradley case, however, is distinguishable from the instant case. In Bradley, the Court found that TDIU was warranted in addition to a schedular 100 percent evaluation where the TDIU had been granted for a disability other than the disability for which a 100 percent rating was in effect. Under those circumstances, there was no “duplicate counting of disabilities.” Bradley, 22 Vet. App. at 293. In this matter, the Veteran seeks entitlement to a TDIU based solely upon his service connected PTSD. See the VA Form 21-8940 dated March 2010. He has not contended that a TDIU is warranted based upon his other service-connected disabilities prior to October 22, 2009 (diabetes mellitus, peripheral neuropathy of the bilateral upper and lower extremities, bilateral hearing loss, and tinnitus). Accordingly, the issue of entitlement to a TDIU for the period from November 21, 2008 to October 22, 2009, was rendered moot by the assignment of the 100 percent disability rating for PTSD. The Board has therefore considered whether a TDIU is warranted prior to November 21, 2008 for the Veteran’s service-connected disabilities. To this end, the Board finds that, although the Veteran fails to meet the criteria for a schedular rating for entitlement to a TDIU, there is medical evidence of record suggesting that he is unemployable due to his service-connected PTSD prior to November 22, 2008. In particular, a November 2009 VA treating psychologist stated that the Veteran’s vocational functioning has been significantly affected by his PTSD and “[h]e has been unable to maintain substantial gainful employment since 2007. He did work briefly for Home Depot, but had to quit after four weeks.” The VA psychologist stated that, “[m]ore recently, [the Veteran] has been working for a used car lot, but was able to make only about $400 per month. He left this position due to increased stressors and escalation in his PTSD symptoms.” The psychologist concluded, “[i]t is unlikely that [the Veteran] will be able to attain or maintain substantial gainful employment due to his PTSD now or in the foreseeable future.” Similarly, a January 2010 VA psychology examination report indicated that the Veteran “has been unable to maintain gainful employment since 2006. He has been let go from two positions due to his anger and forgetfulness. He argues with customers and with his supervisors.” The examiner continued, “[h]is PTSD and mood problems interfere with his ability to manage everyday stresses, much less adapt to stressful circumstances such as those found routinely in the work setting.” Accordingly, the Board finds that the Veteran’s claim requires consideration of TDIU on an extraschedular basis prior to November 21, 2008. Thus, in consideration of the assertions of the Veteran and representative, as well as the medical evidence of record, the Board finds that the Veteran’s claim of entitlement to a TDIU prior to November 21, 2008 should be referred to the Director of Compensation Service to determine if an extraschedular rating is warranted under 38 C.F.R. § 4.16(b). The matter is REMANDED for the following action: Refer the case to the Director of Compensation Service for an initial determination as to whether the Veteran is entitled to the assignment of an extraschedular award based upon TDIU prior to November 21, 2008 pursuant to 38 C.F.R. § 4.16(b). The rating board should include a full statement of all factors having a bearing on the issues. K. Conner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. K. Buckley, Counsel