Citation Nr: 18155330 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 15-15 196 DATE: December 4, 2018 REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) prior to January 23, 1991. REASONS FOR REMAND The Veteran had active service from September 1965 to September 1969. The Veteran has been granted a total disability rating based on individual unemployability (TDIU) effective January 23, 1991, to November 29, 1993, with a 100 percent schedular rating for his psychiatric condition beginning November 30, 1993. In November 2011, he filed a TDIU claim stating he was entitled to this benefit from July 1988 until January 1991. VA had granted entitlement to service connection for an acquired psychiatric disorder effective September 1983. The procedural history is convoluted. Most pertinently, the Veteran claimed his acquired psychiatric disorder had rendered him unemployable “as of April 27, 1987.” See July 1987 Correspondence. A later statement indicated that he was employed continuously from 1973 to July 1987 with a single employer, began work with a new employer in August 1987, and remained employed until June 10, 1988. See January 1991 Application for TDIU (also indicating he worked 40 or “sometimes more” per week and had earnings of $2,000 per month until June 1988). Because the Veteran was gainfully employed until June 10, 1988, and because that employment was not marginal, the Veteran was clearly not unemployable prior to June 1988. The Board will not further discuss the period prior to June 10, 1988. As noted, the Veteran had raised the issue of unemployability in July 1987. He raised it again during his appeal of a denial of service connection for PTSD. See November 1988 VA Form 9 (“Finally, I am appealing because I will be unable to hold a responsible job...that I can be qualified for because no one will hire me knowing my condition.”). The Veteran testified before a Decision Review Officer (DRO) in February 1989. See Hearing Transcript. At the hearing, the Veteran testified extensively regarding the end of his employment in June 1988 and his allegations that his psychiatric condition caused the loss of that job and prevented him from finding new employment. In March 1989, the Veteran underwent a VA examination in connection with his claim. The VA examiner opined that the Veteran “remain[ed] socially isolated and appear[ed] unemployable in the foreseeable future.” See March 1989 VA Examination. In these circumstances, the issue of entitlement to TDIU based on his psychiatric condition was raised by the record at least by March 1989. The Veteran ultimately appealed the ratings initially assigned for his PTSD. Therefore, he had a claim for an increased rating for PTSD pending at the time he became unemployed. TDIU is an element of all increased rating claims. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009) (holding, in a case with a procedural posture very similar to the present case, that “a request for TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if a disability upon which entitlement to TDIU is based has already been found to be service connected, as part of a claim for increased compensation”). As discussed in Rice, the principles for determining the effective date of a claim of entitlement to TDIU vary depending on whether the claim is part of an original claim for compensation or a claim for increase. See Rice, 22 Vet. App. at 454. Nonetheless, no matter how the Veteran’s filings from 1987 through 1989 are construed, the result is the same. Either he submitted an original claim for TDIU that predated the June 1988 end of his continuous employment or he raised the issue of entitlement to a TDIU prior to the end of his employment or he made out a claim for a TDIU less than a year after his employment ended. In any of these situations, the correct effective date for the grant of entitlement to a TDIU will be the day he first met the criteria for a TDIU. See 38 C.F.R. § 3.400. VA will grant TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Under the applicable regulations, TDIU may be granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the obtaining and maintaining of substantially gainful employment. Under 38 C.F.R. § 4.16(a), if there is only one service-connected disability, the disability must be rated at 60 percent or more to qualify for schedular TDIU. If there are two or more service connected disabilities, there must 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. 38 C.F.R. § 4.16(a). During the relevant time period, the Veteran was rated 50 percent disabled due to PTSD and 10 percent disabled due to allergic reaction with deviated septum. These service-connected disabilities combined to a disability rating of 50 percent, so he did not meet the criteria for consideration of TDIU on a schedular basis at any point prior to January 23, 1991. The relevant regulation provides that, if the required percentage requirements for TDIU are not met on a scheduler basis, but the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disorders, then the Director, Compensation and Pension Service (C&P), should consider whether TDIU may be awarded on an extraschedular basis. 38 C.F.R. § 4.16(b). The Board may not award a TDIU on an extraschedular basis in the first instance. For extraschedular TDIU claims, a claimant’s case is eligible for consideration under 38 C.F.R. § 4.16(b) by referral to the Director, Compensation Service, where there is plausible evidence that a claimant is unable to secure and follow a substantially gainful occupation and where there is not any affirmative evidence to the contrary. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001). The pertinent inquiry with respect to the period prior to January 23, 1991, is whether there is “plausible” evidence of unemployability warranting consideration under 38 C.F.R. §4.16(b) by referral to the Director, Compensation Service. As discussed above, the Veteran alleged that he lost his employment due to his PTSD, he also testified that he was thereafter unemployable due to his PTSD, and, finally, the March 1989 VA examiner opined that the Veteran “appear[ed] unemployable in the foreseeable future.” In addition, three later VA examinations provided additional evidence in support of finding that the Veteran had sufficiently serious psychiatric symptoms that he was unemployable. See September 1990 VA Examination (discussing Veteran’s employment history, longstanding unemployment, and serious psychiatric symptoms); October 1991 VA Examination (same); November 1993 VA Examination (“My overall impression is that this veteran…continues to be very disabled psychiatrically as when I examined him [in March 1989, September 1990, and October 1991]…He is not employable. His psychiatric incapacity is severe.”). The above evidence constitutes plausible evidence of unemployability due solely to the Veteran’s service-connected disabilities (PTSD and allergic reaction with deviated septum). See Bowling, 15 Vet. App. at 10. Therefore, the Board finds that referral to the Director, Compensation Service for consideration of entitlement to an extraschedular TDIU rating for the period prior to January 23, 1991, is warranted. See Bowling, 15 Vet. App. at 10; 38 C.F.R. §4.16(b). A remand is required for the RO/AMC to refer the claim for an extraschedular TDIU rating to the Director, Compensation Service. The Veteran should understand that the Board has not determined that he is unemployable prior to January 23, 1991, only that the record contains plausible evidence of unemployability and, therefore, that referral to the Director, Compensation Service, is warranted for consideration of the merits of the issue in the first instance. The matter is REMANDED for the following action: Refer the Veteran’s claim of entitlement to TDIU prior to January 23, 1991, to the Director, Compensation Service, for extraschedular consideration. See 38 C.F.R. § 4.16(b). A copy of the Director’s decision on this claim must be included in the claims file. MICHELLE KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Kerry Hubers, Counsel