Citation Nr: 20034486 Decision Date: 05/18/20 Archive Date: 05/18/20 DOCKET NO. 18-49 133 DATE: May 18, 2020 REMANDED Entitlement to an earlier effective date prior to July 29, 2016 for the grant of a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1963 to June 1966 and from July 1966 to May 1972. 1. TDIU The Board of Veterans’ Appeals (Board) finds that a remand is necessary for additional development of the Veteran’s claim as further explained below. The Veteran seeks an earlier effective date for the grant of TDIU prior to July 29, 2016. Specifically, in his substantive appeal the Veteran stated that he was “due some amount of compensation back dating my 100% prior to July 29th, 2016.” See October 2018 VA Form 9. In evaluating the Veteran’s claim for an effective date earlier than July 29, 2016 for the award of TDIU, the Board notes that the Veteran’s TDIU claim is part and parcel of his initial rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board finds that a recitation of the procedural history is helpful to understanding the Veteran’s contention. The Veteran filed an original claim for service connection, including for post-traumatic stress disorder (PTSD), hearing loss, tinnitus, hypertension, and dizziness in September 2012. See September 2012 VA Form 21-526. The Veteran also indicated that he was unable to work due to these disabilities, as such the September 2012 form implicitly raised a claim of entitlement to TDIU. Notably, the December 2013 rating decision reflects that the Veteran’s combined disability rating was 60 percent effective August 17, 2012. See December 2013 VA Rating Decision-Codesheet. In January 2014, the Veteran filed a formal TDIU claim indicating that he last worked in April 2011. See January 2014 VA Form 21-8940. The Veteran’s TDIU claim was denied in August 2014 because he did not meet the schedular requirements for TDIU. See August 2014 Rating Decision. The Veteran filed a notice of disagreement (NOD) in December 2014 contesting the assigned initial disability ratings in the December 2013 rating decision and seeking a 70 percent or 100 percent rating for PTSD. The Veteran was provided VA examinations in July 2016 for his PTSD and lumbar spine disabilities in connection with his initial rating claims. As a result of the VA psychiatric examination, the Veteran was granted a 70 percent rating for PTSD, and awarded TDIU because he met the schedular requirements effective July 29, 2016. See August 2016 Decision Review Officer Decision. The VA issued a Supplemental Statement of the Case (SSOC) in August 2016, which denied an initial rating higher than 50 percent prior to July 29, 2016 for the Veteran’s PTSD claim. However, as the Veteran did not file a substantive appeal following the August 2016 SSOC, the VA considered the appeal was not perfected. See June 2018 VA Deferred Rating. Accordingly, the Board notes that the claim for a higher initial rating for PTSD is not currently on appeal because the August 2016 Rating Decision became final. Instead, the Veteran filed NODs in November 2016 and January 2017 disagreeing with the effective date assigned for grant of TDIU. Specifically, in January 2017, the Veteran explained that he appealed his PTSD claim and was provided an examination for his January 2013 claim three-and-a-half years later, he also stated the examination “proved what I had appealed for on January 5, 2013; Un-employability due to severe PTSD.” See January 2017 NOD. As stated previously, the Board finds that, the issue of entitlement to an award of TDIU dates back to when the original claim was filed in September 2012. As the Veteran’s claim for TDIU dates back to the September 2012 claim, the potential effective date for an award may extend to the initial rating period beginning August 17, 2012. The Veteran is currently in receipt of a TDIU effective June 29, 2016. However, the Veteran may be entitled to an earlier effective date for TDIU on an extraschedular basis if it is established that he was unable to secure or follow substantially gainful employment as a result of the effect of his service-connected disabilities. 38 C.F.R. § 4.16(b). Under 38 C.F.R. § 4.16(b), if the schedular percentage threshold criteria are not met for TDIU, but there is evidence of unemployability due to service-connected disabilities, the case must be submitted to the Director, Compensation Services, for extraschedular consideration of an earlier effective date for TDIU. 38 C.F.R. § 4.16 (b). Neither the Agency of Original Jurisdiction (AOJ) nor the Board may assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Here, the evidence reflects that prior to July 29, 2016, that the Veteran did not meet the 70 percent schedular requirement for entitled to TDIU for multiple disabilities. However, he consistently reported in lay statements that he was unable to work due to his service-connected disabilities. See i.e. June 2014 VA Form 21-4138. Notably, he filed claims for TDIU in January 2014 and July 2015, asserting that he has not worked since 2011. Importantly, he reported in April 2015 that he was receiving social security benefits. See April 2015 Correspondence. However, these records have not been secured. Given such, prior to making a determination of unemployability, this evidence should be secured. On remand, the AOJ should obtain the Veteran’s social security records as such records may provide relevant evidence of the Veteran’s unemployability prior to July 29, 2016. See Golz v. Shinseki, 590 F. 3d 1317 (Fed. Cir. 2010) (VA is required to obtain Social Security Records when those records are potentially relevant to the claim on appeal.) The matters are REMANDED for the following action: 1. The AOJ should also undertake any additional development deemed necessary. 2. Obtain the Veteran’s federal records from the Social Security Administration. Document all requests for information as well as all responses in the claims file. 3. If there is evidence of unemployability, refer to the Director, Compensation and Pension Service, the matter of whether a TDIU is warranted on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) prior to July 29, 2016. 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 must be provided. Should the Director indicate that further evidentiary development is required, such development should be undertaken. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Gunella Lilly, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.