Citation Nr: 21000651 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 04-20 683 DATE: January 5, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) prior to August 14, 2012, pursuant to 38 C.F.R. § 4.16(b) is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1979 to July 1994. The matter on appeal originates from an August 2003 decision. 1. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to August 14, 2012, pursuant to 38 C.F.R. § 4.16(b) is remanded. As a preliminary matter, the Board of Veterans’ Appeals (Board) notes that Veteran did not meet the minimum requirements for a schedular TDIU prior to August 14, 2012. The Veteran’s service connected disabilities are: PTSD, evaluated at 10% disabling from June 14, 2006 and 100% from August 14, 2012; chronic fatigue syndrome claimed as fatigue as due to an undiagnosed illness, evaluated at 60% from August 14, 2012; atherosclerotic heart disease with inferior wall myocardial infarction, old atypical angina pectoris, normal left ventricular function, evaluated at 10% from January 23, 2003 and at 30% from August 28, 2014; hematuria, evaluated at 0% from October 12, 1995; residuals of left renal lithiasis, evaluated at 0% from October 12, 1995; appendectomy scar, evaluated at 0% from October 12, 1995. The Veteran had a 0% combined evaluation from October 12, 1995, a 10% combined evaluation from January 21, 2003, a 20% combined evaluation from June 14, 2006, and a 100% combined evaluation from August 14, 2012. As such, prior to August 14, 2012, the Veteran did not meet the requirements for a schedular TDIU. 38 C.F.R. § 4.16(a). If the Veteran fails to meet the threshold minimum percentage criteria in 38 C.F.R. § 4.16(a), rating boards should refer to the Director of Compensation Service for extraschedular consideration all cases where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b). The Board cannot assign an extraschedular evaluation in the first instance under § 4.16(b). Nevertheless, the Board may adjudicate whether a referral to the Director of Compensation Service is warranted when the issue is either raised by the claimant or is reasonably raised by the evidence of record. See Thun v. Peake, 22 Vet. App. 111, 115 (2008); Barringer v. Peake, 22 Vet. App. 242 (2008). In such case, the Board’s analysis is limited to merely granting or denying the referral for TDIU on an extraschedular basis under § 4.16(b). Anderson v. Shinseki, 22 Vet. App. 423, 428-29 (2009). That is, 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, the claimant’s case is eligible for consideration under 38 C.F.R. § 4.16 (b) by referral to the Director of Compensation Service. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). In response to a September 2017 remand request from the Board, an October 2017 VA examiner stated that the Veteran had been unable to secure and follow a gainful occupation since 1997 when he had a heart infarct; and that this date preceded 2006. Further, the examiner stated that PTSD symptoms were present since 2003. The Board concluded that a second remand was necessary in order to clarify when the Veteran’s PTSD symptoms manifested into total occupational and social impairment. An August 2020 VA examiner reviewed the Veteran’s medical records. The examiner concluded that “It is determined that [The Veteran’s] service-connected neuropsychiatric condition was not severe enough to render him unemployable. It is worth mentioning, that this veteran worked as [a] nursing assistant at San Juan VAMC from 1997 until 2002, when he suffered [a] heart attack.” The VA examiner mentioned that the Veteran was unable to resume his previous occupational demands due to his cardiac complications resulting in occupational dysfunction and physical limitations. The medical evidence is sufficient to warrant referral to the Director of Compensation Service for consideration under 38 C.F.R. § 4.16(b). The matters are REMANDED for the following action: 1. Refer the issue of entitlement TDIU prior to August 14, 2012 to the Director of the Compensation Service for action in accordance with 38 C.F.R. § 4.16(b). H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jonah Nelson, 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.