Citation Nr: 18143023
Decision Date: 10/17/18	Archive Date: 10/17/18

DOCKET NO. 10-36 664
DATE:	October 17, 2018
REMANDED
Prior to May 18, 2011, entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded.
REASONS FOR REMAND
Prior to May 18, 2011, the Veteran’s combined disability rating was 70 percent, but he did not have one disability rated at 40 percent as required by the schedular requirements for TDIU.  See 38 C.F.R. §§ 3.340, 3.341, 4.16(a).  It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reasons of service-connected disabilities shall be rated totally disabled.  Therefore, in the case of veterans who are unemployable due to service-connected disabilities, but who do not meet these schedular percentage standards set forth in 38 C.F.R. § 4.16(a), the case should be submitted to the Director of the Compensation Service for extraschedular consideration.  The Veteran’s service-connected disabilities, employment history, educational level, and vocational attainment must be considered.  See 38 C.F.R. § 4.16(b).
The Board finds referral to the Director of the Compensation Service for extraschedular consideration of a TDIU is warranted.  The evidence shows the Veteran’s service-connected back disability and PTSD prevented him from securing gainful employment.  In a December 2008 record, the physician noted the Veteran had stabbing back paint that radiated down his leg causing numbness and tingling.  Consequently, the Veteran had problems standing, sitting, and walking for more than 15 to 20 minutes.  The examiner stated because of the amount of walking required the Veteran could not continue working in a car dealership.  
Similarly, at his January 2009 VA examination, the Veteran described the difficulties he had working in the car dealership due to his PTSD.  He stated he could not be around people and had to call off work about once a week due to his mental health symptoms.  In March 2008, the Veteran left his job.  He tried working at another dealership in July 2008, but had to quit because he could not tolerate being around others.  The January 2009 examiner noted the Veteran’s PTSD had a significant impact on his ability to work.  As the evidence suggests that the Veteran is unable to work due to his service-connected disabilities, the Board finds that consideration of an extraschedular TDIU in the first instance is necessary.   
The matter is REMANDED for the following action:
1. Refer the issue of entitlement to a TDIU to the Director of the Compensation Service for extraschedular consideration.  Include a full statement as to the Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue.  See 38 C.F.R. § 4.16(b).
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2. Then, readjudicate the issue on appeal.  If the benefit is denied, issue a supplemental statement of the case and allow appropriate time for response.  Then, return the case to the Board.
 
D. Martz Ames
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	R. Brunot, Associate Counsel