Citation Nr: 1829567 Decision Date: 06/20/18 Archive Date: 07/02/18 DOCKET NO. 16-15 731A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU) for the period prior to October 16, 2008. REPRESENTATION Appellant represented by: Ralph J. Bratch, Attorney ATTORNEY FOR THE BOARD R. Behlen, Associate Counsel INTRODUCTION The appellant served on active duty in the Marine Corps from October 1963 to March 1964. This matter comes before the Board of Veterans' Appeals (Board) from a March 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona, which granted entitlement to TDIU, effective October 16, 2008. Such stated that the decision was a full grant of the benefits sought on appeal. The appellant filed a timely Notice of Disagreement (NOD), received in December 2014. A Statement of the Case (SOC) was issued in February 2016. A timely substantive appeal was received in April 2016. In order to more accurately reflect the benefit sought on appeal, the Board has recharacterized the matter as entitlement to TDIU for the period prior to October 16, 2008, rather than as entitlement to an effective date earlier than October 16, 2008, for the grant of TDIU. As explained below, the Board agrees with the appellant's attorney that the appellant's claim of entitlement to TDIU was part and parcel of his claim for an initial increased rating for his service-connected mood disorder, not otherwise specified, with features of depression and anxiety, regardless of how the appellant's TDIU claim was previously characterized by the RO. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Given the appellant's assertions, the evidence of record, and the fact that the matter is being remanded, no prejudice to the appellant has resulted. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND As an initial matter, the Board agrees with the appellant and his attorney that the issue of entitlement to TDIU was part and parcel of his claim for an initial increased rating for his service-connected mood disorder, not otherwise specified, with features of depression and anxiety. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Thus, the earliest effective date possible for the award of entitlement to TDIU in the instant matter is February 28, 2005, the effective date of the award of service connection for mood disorder, not otherwise specified, with features of depression and anxiety, the appellant's only service-connected disability. Indeed, the appellant and his attorney have not disagreed with the effective date assigned for the grant of service connection for mood disorder, not otherwise specified, with features of depression and anxiety. Rather, in the November 2008 NOD of the May 2008 rating decision, which granted entitlement to service connection for such, the appellant and his attorney disagreed with the initial 30 percent rating assigned. The issue of entitlement to TDIU for the period prior to October 16, 2008, pursuant to Rice, was not discussed in the September 2017 Board decision because the appeal of the instant matter, characterized at that time as entitlement to an earlier effective date for the award of TDIU, was perfected but pending additional action by the RO. Thus, the Board considered only the appellant's entitlement to an initial rating in excess of 30 percent for mood disorder under the applicable Diagnostic Code prior to October 16, 2008. See Tyrues v. Shinseki, 23 Vet. App. 166 (2009) (VA has the power to bifurcate a single claim and adjudicate different theories separately). The appellant does not meet the schedular criteria for a total rating based on individual unemployability under 38 C.F.R. § 4.16(a) for any portion of the period on appeal because his sole service-connected disability, mood disorder, not otherwise specified, with features of depression and anxiety, is rated as 50 percent disabling prior to October 16, 2008. However, the record contains evidence suggesting that he may be entitled to an award of a total rating based on individual unemployability on an extraschedular basis for some or all of the period on appeal. For example, Forms W-2 from 2006 and 2008 and records from the Social Security Administration (SSA), submitted by the appellant's attorney, indicate that the appellant's earnings from 2005 to 2008 were less than $10,000 per job and that such employment was part-time. The appellant reported that he last worked full-time as an automobile salesman in August 2004 and that he had three and a half years of college education. See Form 21-8940, received in October 2009. Multiple clinical notes and evaluation reports by Dr. A.B.H., from the period 2005 through 2008, include opinions that the appellant was underemployed and/or unemployable. He had a history of working in sales and as a finance manager for recreational vehicle and automobile dealers, but was working part-time as a pizza delivery man. He also worked as a part-time weapons tester for a period. GAF scores ranging from 45 to 65 were assigned between 2005 and 2008. Dr. A.B.H. observed that, although the appellant could be friendly and cooperative at times, he would later be negativistic and hostile due to mood fluctuations. An August 2007 progress report from Dr. A.B.H. noted that the appellant had been delivering pizzas but had experienced a significant decline in the type of positions he has been able to hold due to difficulty concentrating. A progress report for the period September 2007 through February 2008 noted that the appellant had had difficulty maintaining and sustaining employment. He had worked delivering pizzas, which was a significant decline as he had previously worked as a finance manager for recreational vehicle and automobile dealerships. He reported that he had been unsuccessful in seeking employment as a salesman. In a July 2008 statement, Dr. A.B.H. opined that the appellant was unemployable and would not be able to maintain employment in a competitive environment. Dr. A.B.H. noted the appellant's history of working as a pizza delivery driver in recent years, although he was not currently working, again pointing out that such was a decline from working as a finance manager or in sales. Dr. A.B.H. conferred with the appellant's treating psychiatrist, Dr. S.R.J., who agreed with Dr. A.B.H.'s opinion that the appellant was unemployable. An October 16, 2008, progress report notes that the appellant was unemployable due to deficiencies in areas of judgment, thinking, and mood. He could not engage in significant or successful interpersonal activities with anyone but his significant other. The appellant described himself as too distractible now to complete most activities. The appellant was afforded a VA examination in April 2007. The claims file was reviewed. He reported dropping out of school early in order to help support his family while his parents were unable to work. He reported that he had been fired from jobs frequently over the years. He endorsed symptoms of exaggerated startle response, generalized anxiety and irritability, social isolation, depressed mood, and insomnia. He was working part-time as a pizza delivery driver. He reported a long and sporadic work history where he was let go from several jobs and had difficulties holding onto employment. He contended that periods of unemployment were due to the effects of his mental disorder. The appellant denied difficulties with violent or assaultive behavior. He reported that he has not used alcohol for three years and had not used illegal substances in decades. Examination revealed no impairment in thought process or communication. He was oriented to all spheres and experienced no significant memory loss or impairment. The examiner observed that the appellant tended to isolate himself but was able to appropriately interact with others and opined that the appellant was able to meet work demands and responsibilities. It is the policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of a service-connected disability shall be rated totally disabled and that veterans who fail to meet the schedular criteria for a total disability rating shall be considered for such a rating on an extraschedular basis. 38 C.F.R. § 4.16(b). The Board is precluded from awarding a total rating based on individual unemployability on an extraschedular basis in the first instance, but must ensure that the claim is referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Thus, the Board finds that a remand is required for such referral. See 38 C.F.R. § 4.16(b). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. The AOJ should refer the appellant's claim to the Director, Compensation Service, for consideration of assignment of a total rating based on individual unemployability due to service-connected disability prior to October 16, 2008, on an extraschedular basis under the provisions of 38 C.F.R. § 4.16(b). 2. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the benefits sought on appeal remain denied, a Supplemental Statement of the Case must be provided to the appellant and his representative. After an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The appellant 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). (CONTINUED ON NEXT PAGE) 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). ______________________________________________ K. Conner 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).