Citation Nr: 18148171 Decision Date: 11/08/18 Archive Date: 11/06/18 DOCKET NO. 16-39 069 DATE: November 8, 2018 REMANDED Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1970 to July 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2015 rating decision. The Veteran sought entitlement to a TDIU in July 2015. A TDIU may be assigned if the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16 (a). However, the Veteran’s service-connected disabilities must meet the following criteria: (1) if there is only one such disability, this disability shall be ratable at 60 percent or more; or (2) if there are two or more such 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. Here, the Veteran is service connected for generalized anxiety disorder with panic disorder, rated at 50 percent, and for a duodenal ulcer, rated at 20 percent. The Veteran’s total combined disability rating is 60 percent from April 22, 2010. Thus, the Veteran’s combined disability rating is not 70 percent or higher, and he does not have a single service-connected disability rated at 60 percent or more. Accordingly, the Veteran does not meet the schedular criteria for TDIU. However, notwithstanding the above listed schedular criteria, a Veteran may be awarded a TDIU on an extraschedular basis if he is nonetheless unemployable on account of his service connected disabilities. Such a TDIU claim may be submitted to the Director of the Compensation Service. 38 C.F.R. § 4.16(b); Fanning v. Brown, 4 Vet. App. 225 (1993). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Additionally, the Board is required to obtain the Director’s decision before the Board may award extraschedular TDIU. Wages v. McDonald, 27 Vet. App. 233, 236 (2015). Therefore, the Board may not adjudicate the issue of entitlement to an extraschedular TDIU. In September 2014, a VA examination found that the Veteran reported daily anxious mood, frequent fatigue, frequent anhedonia, self-depreciating ideations, irritability resulting in occasional verbal outbursts, and anxiety-fueled insomnia. He also reported declining cognitiv functioning. Upon examination, his symptoms were depressed mood, anxiety, panic attacks that occurred weekly or less often, chronic sleep impairment, mild memory loss, disturbance of motivation or mood, and difficulty in establishing and maintaining effective work and social relationships. In September 2015, VA examination found that the Veteran suffered from depressed mood, anxiety, panic attacks that occurred weekly or less often, chronic sleep impairment, mild memory loss, disturbance of motivation or mood, and difficulty in establishing and maintaining effective work and social relationships. Accordingly, the Board finds that there is evidence sufficient to refer the claim for entitlement to a TDIU to the Director of the Compensation Service The matter is REMANDED for the following action: 1. The AOJ should refer the matter of entitlement to a TDIU rating on an extraschedular basis to the VA Director of Compensation and Pension for a determination on the matter. In connection with the referral, the AOJ should include a full statement outlining the Veteran’s service-connected disabilities, employment history, educational attainment and all other factors bearing on the issue. 2. Thereafter, the AOJ should implement the Compensation and Pension Service Director’s determination. If the benefit sought remains denied, the AOJ should issue an appropriate supplemental statement of the case and afford the appellant the opportunity to respond. The case should then be returned to the Board, if in order, for further review. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Parrish, Associate Counsel