Citation Nr: 21000780 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 14-22 884 DATE: January 6, 2021 REMANDED Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities prior to August 31, 2010 is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from June 1967 to June 1971. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a June 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In February 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. These matters were previously remanded by the Board in February 2018 and August 2020. Entitlement to a TDIU due to service-connected disabilities prior to August 31, 2010 is remanded. The Board notes that TDIU since August 31, 2010, was dismissed as moot in the August 2020 Board decision because the Veteran’s service-connected disabilities were rated at 100 percent since that time. However, as the Veteran had not been awarded the maximum benefits sought prior to August 31, 2010, the issue of entitlement to TDIU prior to August 31, 2010 remains on appeal. The law provides that a total disability rating may be assigned where the schedular rating is less than total, when the person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall 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. Pursuant to the Veteran’s August 2010 VA Form 21-8940 Application for Increased Compensation Based on Individual Unemployability, the Veteran asserted his hypertension, heart disease, back pain, neck pain, fatigue and sleep apnea prevented him from securing or following any substantially gainful occupation. As explained below, of those disabilities claimed, the Board notes that the Veteran is only service-connected for chronic fatigue syndrome prior to August 31, 2010. However, the Board also notes that the Veteran is service-connected for posttraumatic stress disorder (PTSD) prior to August 31, 2010, and is in receipt of Social Security Administration (SSA) disability benefits due to a primary diagnosis of dysthymic disorder and a secondary diagnosis of coronary artery disease with angina since November 30, 2008. As such, the Board will broadly interpret the Veteran’s claim for TDIU due to all of his service-connected disabilities prior to August 31, 2010. In this regard, prior to August 31, 2010, the Veteran is service-connected for PTSD, rated as 50 percent disabling from June 30, 2010; tinnitus, rated as 10 percent disabling from June 30, 2010; bilateral hearing loss, rated as noncompensable from June 30, 2010; and chronic fatigue syndrome, rated as 60 percent disabling from August 9, 2010. The Veteran’s combined ratings are 60 percent from June 30, 2010 and 80 percent from August 9, 2010. Thus, the Veteran does not meet the schedular criteria for entitlement to a TDIU prior to August 9, 2010. In such circumstances, VA must consider TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). The Board cannot, however, consider entitlement to TDIU under 38 C.F.R. § 4.16(b) in the first instance but must first remand the claim for referral to VA’s Director of Compensation Service if such consideration is warranted. Bowling v. Principi, 15 Vet. App. 1, 9-10 (2001). Recently, the Court of Appeal for Veterans Claims explained that this initial extraschedular referral decision under § 4.16(b) should address whether there is “sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities.” Ray v. Wilkie, 31 Vet. App. 58, 66 (2019). In this case, given that the Veteran is in receipt of SSA disability benefits due to primarily to dysthymic disorder, the Board finds that there is a reasonable possibility that the Veteran is unemployable due, in part, to his service-connected PTSD prior to August 9, 2010 (the date in which he meets the schedular criteria for TDIU). Accordingly, the Veteran’s claim for TDIU must be remanded for referral to the Director, Compensation Service, for consideration of an extraschedular TDIU. See 38 C.F.R. § 4.16(b). The matters are REMANDED for the following action: Refer the issue of entitlement to a TDIU prior to August 31, 2010 to VA’s Director of Compensation Service for extraschedular consideration pursuant to 38 C.F.R. § 4.16(b). ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Medina, 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.