Citation Nr: 20052452 Decision Date: 08/06/20 Archive Date: 08/06/20 DOCKET NO. 13-33 960A DATE: August 6, 2020 REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) for the time period on appeal prior to February 8, 2017 is remanded for extraschedular consideration. REASONS FOR REMAND The Veteran served on active duty from June 2002 to June 2005. This case comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO). By way of history, in a March 2019 rating decision, the RO granted entitlement to TDIU, effective January 7, 2019. However, in the June 2019 Board remand, the Board found that the TDIU claim arose during the course of an increased rating appeal, and the March 2019 grant did not bifurcate the TDIU issue for a portion of the applicable period on appeal. Harper v. Wilkie, 30 Vet. App. 356 (2018) (holding that a grant of TDIU for a portion of the appeal period does not bifurcate the appeal and, therefore, is considered a partial grant of the benefit sought). Thus, the issue of entitlement to TDIU prior to January 7, 2019 was remanded for readjudication. Thereafter, in a June 2020 rating decision, the RO granted entitlement to an earlier effective date for the grant of TDIU, now effective February 8, 2017. This date was based on the date on which the Veteran met the disability percentage requirements for unemployability consideration. However, the Board again notes that the issue of TDIU became part of the underlying PTSD increased rating claim when the Veteran filed an application for TDIU in August 2011. As noted, prior to February 2017, the Veteran’s combined disability rating did not meet the schedular requirements for a TDIU under 38 C.F.R. § 4.16(a). Here, beginning May 28, 2010, the Veteran was service-connected for PTSD (50 percent) and a back condition (10 percent), with the overall combined rating as 60 percent. That notwithstanding, the August 2011 TDIU application as well as statements made by the Veteran prior to February 2017 are sufficient to raise the question of whether the Veteran was unable to secure or follow a substantially gainful occupation due to his service-connected disabilities, even though the percentage requirements for TDIU were not met. See 38 C.F.R. § 4.16(b). For example, in a May 2008 back examination, it was noted his back had stiffness, spasms, pain that he described as sharp and stabbing, and is daily and constant. It was also opined by the examiner that the Veteran was currently unemployed due to his back problems. In a December 2011 VA examination, it was noted his back pain was functionally impacted, and it was opined it would affect an active job but not a sedentary job. In a July 2010 VA examination for PTSD, he reported he has episodes of violence such that he loses his temper and hits walls, sometimes injuring himself. In the 2013 VA examination, he reported that he last worked as a massage therapist but had physical problems which limited work; he had enrolled with vocational rehab where he had been successful but was unable to find work thereafter and thought a restaurant would be too stressful. He stated he worked at a grocery store, but the pain was unbearable so he had to quit. He also stated that his memory and mood had worsened. In the 2013 Form-9 statement, he reported that symptoms had gotten worse such that he had trouble sleeping, memory loss, anger issues, flashbacks and nightmares, and was unable to work. January 2014 VA medical records show it was noted he had poor impulse control, yells at people, punches walls, and is intolerant of “stupid people” and flips off and screams at others. An August 2014 emergency department note showed he had chronic low back pain and that the pain was worse when he would lay down or when sitting. In January 2016 he reported his back pain increases when standing, walking, lifting, lying down, sitting, bending, and when stressed. However, the Board cannot consider entitlement to a TDIU on an extraschedular basis in the first instance. Instead, the Board is required to refer all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), to the Director for extraschedular consideration. See 38 C.F.R. § 4.16(b); Bowling v. Principi, 15 Vet. App. 1 (2001). Thereafter, the Board has jurisdiction to review the Director’s determination. Wages v. McDonald, 27 Vet. App. 233 (2015) (explaining that “the Board is required to obtain the Director’s decision before the Board may award extraschedular TDIU”). On remand, this referral should take place. The matters are REMANDED for the following action: The Veteran’s claim should be reviewed and forwarded to the Director of VA’s Compensation Service for consideration of entitlement to a TDIU on an extraschedular basis in accordance with 38 C.F.R. § 4.16(b), for the period prior to February 8, 2017. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G.Hoy, 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.