Citation Nr: 21001818 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 16-23 938 DATE: January 11, 2021 ORDER Entitlement to an initial evaluation in excess of 50 percent prior to December [REDACTED], 2013, for posttraumatic stress disorder (PTSD) is denied. Entitlement to an evaluation of 70 percent, and no greater, beginning December [REDACTED], 2013, for PTSD is granted. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) beginning December [REDACTED], 2013, is granted. REMANDED Entitlement to a TDIU prior to December [REDACTED], 2013, is remanded. FINDINGS OF FACT 1. Prior to December [REDACTED], 2013, the Veteran’s PTSD manifested primarily in anxiety, panic attacks, and sleep impairment. 2. Beginning December [REDACTED], 2013, the Veteran’s PTSD manifested in anxiety, panic attacks, sleep impairment, and suicidal ideation. 3. Throughout the period on appeal, the Veteran’s service-connected disabilities, particularly the PTSD, prevented the Veteran from securing or following gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 50 percent prior to December [REDACTED], 2013, for PTSD have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.130, Diagnostic Code 9411. 2. The criteria for an evaluation of 70 percent, and no greater, beginning December [REDACTED], 2013, for PTSD have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.130, Diagnostic Code 9411. 3. The criteria for a TDIU beginning December [REDACTED], 2013, have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Navy from August 1967 to November 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in July 2019. This case was previously before the Board in October 2019 and May 2020, when it was remanded for development. The case has been returned to the Board for further appellate review. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disabilities must be viewed in relation to their entire history. 38 C.F.R. § 4.1. VA is required to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. VA is also required to evaluate functional impairment on the basis of lack of usefulness and the effects of the disabilities upon the claimant’s ordinary activity. 38 C.F.R. § 4.10; see generally Schafarth v. Derwinski, 1 Vet. App. 589 (1991). 1. Entitlement to an initial evaluation in excess of 50 percent prior to January 24, 2020, and in excess of 70 percent thereafter, for PTSD The Veteran is currently service-connected for PTSD, rated under Diagnostic Code 9411 as 50 percent disabling effective November 12, 2010, and 70 percent disabling effective January 24, 2020. This diagnostic code uses the General Rating Formula for Mental Disorders for rating criteria. 38 C.F.R. § 4.130. Under the general formula, a 50 percent evaluation is warranted where there is occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is assigned where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); or inability to establish and maintain effective relationships. A 100 percent evaluation is warranted where there is total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations, grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. The United States Court of Appeals for the Federal Circuit held that evaluation under 38 C.F.R. § 4.130 is “symptom-driven,” meaning that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating.” Vasquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather, “serve as examples of the type and degree of symptom, or their effects, that would justify a particular rating.” Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering “not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas;” that is, “the regulation . . . requires an ultimate factual conclusion as to the Veteran’s level of impairment in ‘most areas.’” Vasquez-Claudio, 713 F.3d at 117-18. Further, when evaluating a mental disorder, the Board must consider the “frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission.” 38 C.F.R. § 4.126(a). The Board must also “assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of examination.” Id. Accordingly, an examiner’s classification of the level of psychiatric impairment is to be considered but is not determinative of the VA disability rating to be assigned; the percentage evaluation is to be based on all the evidence that bears on occupational and social impairment. Id.; see also 38 C.F.R. § 4.126, VAOPGCPREC 10-95, 60 Fed. Reg. 43186 (1995). Here, the records reflects evidence of consistent treatment for the Veteran’s PTSD symptoms throughout the appeal period, with the severity of the symptoms worsening. At a series of November 2010 mental health consultations, the Veteran denied any major sleep disruptions. He reported having memories of his time in Vietnam, but not intrusive memories of specific traumatic events. The Veteran also reported becoming short of breath upon being triggered, and that he cannot tolerate crowds, traffic, or small rooms or spaces. He reported irritability and angry outbursts, but denied rage. In April 2011, the Veteran attended a VA examination, at which he reported experiencing depression two or three days a week and having panic attacks up to twice a week, each lasting approximately 20 minutes to two hours. The Veteran described the panic attacks as including his heart racing, his hands shaking, pressure on the chest, difficulty breathing, and feeling tense. He reported that being in enclosed places such as an elevator, crowds, traffic, or airplanes, trigger the panic attacks. The Veteran also reported irritable and angry outbursts on occasion, and becoming tense upon hearing an unexpected noise. He reported sleeping with a knife under his bed, and having to sleep alone because he startles if his wife of over 40 years touches him while asleep. The Veteran described having problems falling asleep and staying asleep due to his mind racing; he also reported experiencing nightmares approximately once a week. Memory loss was not noted, and current suicidal ideation was denied; the Veteran reported last contemplating suicide 20 years prior. The Veteran reported bowling once a week with friends, visiting a friend’s house twice a week to “drink and talk story,” and occasionally walking around a shopping center for exercise and to see if he might run into people he knows. The examiner described the severity of the PTSD symptoms as moderate. The Veteran attended regular counseling at a Vet Center from January 2011 to May 2015. These records reflect complaints of difficulty managing anxiety, manifesting primarily in panic attacks and hypervigilance. These records also document complaints of a short temper and angry outbursts. In January 2012, the Veteran reported that his anxiety and panic attacks cause him to alter his routines one or two days a month, though fear of recurring anxiety prevents him from taking plane trips, using elevators, taking long car rides, being in rush hour traffic, or being around crowds. From June 2012 to early December 2013, the Veteran continued to report anxiety, but that he was experiencing less severe symptoms despite increased stressors, such as his wife requiring dialysis, his daughter and young granddaughter moving in with him, and regularly helping take care of his sister with Parkinson’s disease. In January 2014, the Veteran reported that his young granddaughter died suddenly on Christmas, and that he drank heavily for three days following her death. This led to seeking treatment in a VA emergency room for stomach pain in early January 2014, which resulted in a diagnosis of gall stones and then gallbladder surgery. Subsequently, the Veteran reduced his alcohol intake and increased walking exercise; in March 2014, he reported challenges with this substitution, since he drank alcohol for 40 years to manage anxiety and rumination. In March 2014, the Veteran sought additional counseling with a VA mental health clinic for issues related to the death of his granddaughter. The consultation primarily centered on the Veteran’s longstanding pattern of drinking excessively to cope with life stressors and his underlying PTSD symptoms. He reported having been sober since the January 2014 emergency room visit, and the VA social worker discussed with him strategies to preserve his sobriety and encouraged him to seek treatment for PTSD in conjunction with sobriety. In a May 2014 therapy session at the Vet Center, the Veteran reported having had suicidal ideation in the past that he would drink himself to death, and associated his emergency room visit with this type of suicidal ideation. He also noted that, since reducing his alcohol intake, he has increased awareness of his memories, thoughts, and feelings related to his time in Vietnam as well as of his anxiety and other emotional responses. In September 2014, the Veteran attended another VA examination, at which he reported recurrent panic attacks that can occur unexpectedly or when he is in situations involving close spaces or driving on freeways. The Veteran also reported waking up after three hours and not being able to return to sleep. He reported drinking several beers at night, up to six beers a day, plus a glass of wine. The Veteran described some verbal encounters with his neighbors when they block his parking space. The examiner noted symptoms including depressed mood, anxiety, and impaired judgment. The examiner also noted the Veteran’s alcohol abuse included poor emotional coping as a factor, when he sought immediate relief from symptoms and panic attacks instead of appropriate mental health treatment. In October 2014, the Veteran began seeking mental health treatment at a VA medical center, including consulting with a psychiatrist for anxiety medication and individual therapy sessions with an addictions therapist. Throughout his VA treatment records, the Veteran continued to report symptoms including panic attacks due to claustrophobia, sleep disruption, hypervigilance, and avoidance. At the initial consultation with psychiatry, he described having suicidal ideation the previous year when grieving his granddaughter’s death, reporting that he thought about crashing his car. The Veteran reported that thoughts about how his family would be affected stops him from making any suicide attempts. At a November 2014 comprehensive evaluation, the VA psychologist opined the Veteran’s experiences in Vietnam had significant impact in the onset of his panic attacks, which have significantly impacted his social and occupational functioning. The psychologist also noted excessive rumination on recent and past events and interactions, as well as excessive worry and anxiety throughout each day, including worry over experiencing another panic attack. At a March 2015 primary care visit, the Veteran denied thoughts of hurting himself or others but reported having problems becoming angry with others. In April 2016, the Veteran attended another VA examination, at which he reported gathering with friends occasionally but avoiding crowds in general. He reported panic attacks and discomfort with high elevations, tight spaces, traffic, and crowds. He also reported feeling watchful at night in his home, checking the house for safety and sleeping with weapons. The Veteran reported drinking approximately eight to 12 beers a day and a glass of wine; he described experiencing panic and shaking of his hands when he cuts back on alcohol, as well as feeling more emotional. The Veteran endorsed occasional passive thoughts of death but denied having a plan for suicide; he recalled having suicidal ideation when his granddaughter died. He was able to recall two of four objects following a short interval. The examiner opined the alcohol abuse was not secondary to PTSD, but rather a behavior within the Veteran’s conscious control. An October 2016 VA medication management and psychotherapy note indicates the Veteran’s anxiety had improved somewhat with an increase in medication but that he was continuing to experience two or three panic attacks a week. In November 2016, the Veteran called the VA mental health crisis line seeking help in dealing with a panic attack he experienced while driving. The Veteran’s VA treatment records from 2015 through 2017 reflect ongoing individual therapy and compliance with medication, eventually resulting in a sustained reduction in the amount of alcohol the Veteran consumed by 2017. By July 2018, this amount had begun to increase again, and by May 2019, he reported drinking six beers four to six times a week. In an August 2017 letter, the Veteran’s daughter reported that she has observed her father having episodes of forgetting simple things. She also reported noticing him experience lack of sleep. In July 2019, the Veteran testified at a Board hearing that his anxiety continued to be a problem around which he adjusted his life. He testified that he experiences frequent episodes of panic, often triggered by driving in traffic or on the freeway, or being in elevators or other close spaces. He testified that he needs to have someone with him to go grocery shopping or to drive long distances in case of a panic attack. In January 2020, the Veteran attended another VA examination. The examiner noted diagnoses of PTSD and alcohol use, opining that there is significant overlap and exacerbation of symptoms between these co-morbid diagnoses and it is not possible to differentiate what symptoms or portions of symptoms are attributable to each diagnosis. The Veteran reported anger outbursts approximately two to four times a week, depressed mood once a week, panic attacks two to three times a week, as well as anxiety and suspiciousness. His memory was noted to be fair, and he admitted to passive suicidal ideations. The Veteran submitted several letters from a private mental health treatment provider, who stated that she had been treating the Veteran since May 2019. The private therapist reported the Veteran endorsed symptoms including frequent panic attacks, and quickness to anger and irritability. In March 2020, the private therapist reported the Veteran was consistent with weekly therapy sessions. She noted his reports of avoiding crowded spaces, rooms with no windows, elevators, and driving in traffic for fear of being trapped and having panic attacks accompanied by intense pressure in his chest. The therapist noted the Veteran was very quick to anger, triggered by minor conflicts or disagreements, and that he has difficulty relating to people because of this. In a June 2020 letter, the therapist reported the Veteran’s full records are inaccessible due to COVID-19 pandemic restrictions. She also reported that, since the beginning of the pandemic in the spring of 2020, the Veteran’s symptoms of anxiety and excessive worry have worsened, and they have increased his treatment from one to three sessions per week. Throughout the period on appeal, the Veteran was always noted to be neatly groomed, alert, and oriented, with linear and logical thought processes, and conversation and speech within normal limits. No obsessive or ritualistic behavior was ever noted, and the Veteran consistently denied delusions and hallucinations. After careful review of the record, the Board finds that an increased evaluation is warranted. First, the Board notes the April 2016 VA examiner opined that the alcohol abuse was not related to the service-connected PTSD, defining alcohol abuse as an action or behavior under the conscious control of the Veteran rather than a symptom. The other three VA examinations in the record associate the alcohol abuse with the PTSD, indicating that, in seeking immediate relief from PTSD symptoms through the use of alcohol rather than appropriate mental health treatment, the Veteran abused alcohol. Further, the January 2020 VA examiner noted that the symptoms of PTSD and alcohol abuse overlap and cannot be differentiated. Therefore, the Board finds it is appropriate to consider the symptoms of alcohol abuse documented in the record in determining the severity of the service-connected PTSD. Consistent throughout the period on appeal are the Veteran’s reports of severe anxiety and panic attacks. He also consistently reported angry outbursts and irritability, sleep impairment, and hypervigilance. The Board notes that, at the April 2011 VA examination, the Veteran denied suicidal ideation, and reported that the last time he contemplated suicide was 20 years prior. Likewise, his Vet Center treatment records prior to May 2014 are silent for endorsement of suicidal ideation. However, the May 2014 Vet Center therapy session notes the Veteran discussed suicidal ideation, including his thoughts of drinking himself to death after the death of his granddaughter. The emergency room records from early January 2014 indicate reports of a drinking binge since her death on December [REDACTED], 2013, which the Veteran soon thereafter associated with suicidal thoughts. Although his mental health treatment records following the May 2014 therapy session do not contain regular reports of suicidal ideation, the Board notes the Veteran endorsed occasional thoughts of suicide in October 2014, April 2016, and January 2020. These endorsements, in conjunction with the consistent, severe panic attacks and ongoing anxiety around which the Veteran adjusted his choices, form a disability picture that more closely approximates the criteria for a 70 percent evaluation. The Board finds that the appropriate effective date for the 70 percent evaluation is December [REDACTED], 2013, the date the Veteran began the drinking binge that led to the emergency room treatment. Prior to December [REDACTED], 2013, the Board finds the evidence more closely approximates the criteria for a 50 percent evaluation. In this period, there is no evidence of suicidal ideation, as noted above. The Veteran’s PTSD manifested instead in alcohol abuse, occasional angry outbursts, sleep impairment, and regular panic attacks. His symptoms did not appear to inhibit his ability to maintain effective relationships, as he took on greater caregiving responsibilities during this period, including inviting his daughter and granddaughter to move in with him and his wife. He also reported more regular and frequent visits with friends outside of his family during this period. The Board notes that, the Veteran’s private mental health treatment provider stated that his full treatment records are unavailable due to pandemic restrictions. The Board finds that the private provider’s letters describing the Veteran’s PTSD symptoms support the continuation of the 70 percent evaluation through the period the provider reports treating the Veteran; therefore, the record as available at this time is sufficient. A higher rating of 100 percent is not appropriate at any point in the appeal period, as there is no evidence of gross impairment of thought processes or communication, persistent delusions or hallucinations, or grossly inappropriate behavior. The Veteran was always noted to be alert and oriented, and neatly groomed. Although there is evidence of mild memory loss throughout the appeal period, this evidence does not indicate memory loss so severe the Veteran forgets the names of close relatives or the Veteran’s own name. The Board further notes the private therapist reported that the Veteran’s anxiety and worry worsened in the spring of 2020; however, the therapist did not describe this worsening resulting in any symptoms contemplated by the criteria for a 100 percent evaluation or symptoms of similar severity, frequency or duration. Therefore, the Board finds a 50 percent evaluation is appropriate for the period prior to December [REDACTED], 2013, and a 70 percent evaluation is warranted for the period beginning December [REDACTED], 2013. TDIU VA will grant entitlement to TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from securing and following “substantially gainful employment” consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The sole fact that the Veteran was or is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the Board must evaluate whether there are circumstances in the Veteran’s case, apart from any non-service-connected conditions and advancing age, which would justify a total rating based on individual unemployability due solely to the service-connected conditions. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); see also Blackburn v. Brown, 5 Vet. App. 375 (1993). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Marginal employment includes occupation incapable of producing income that is more than marginal, Ortiz-Valles v. McDonald, 28 Vet. App. 65, 71 (2016), and occupation where earned annual income exceeds the poverty limit but is done so in a protected environment such as a family business or sheltered workshop, 38 C.F.R. § 4.16(a). The regulations provide that if there is only one service-connected disability impeding employability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes. 38 C.F.R. § 4.16(a). Because it is established VA policy that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled, the Board will submit to the Director of Compensation and Pension Services (Director) for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the above percentage standards. 38 C.F.R. § 4.16(b). The Board cannot assign an extraschedular rating in the first instance, but must specifically adjudicate whether to refer a case to the Director for consideration of an extraschedular rating under section 4.16(b) when the issue is either raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008) (citing Thun v. Peake, 22 Vet. App. 111, 115 (2008)). Section 4.16 of VA’s regulations does not require a finding that the schedular ratings are inadequate to compensate for the average impairments in earning capacity caused by particular disabilities, but requires only a finding that the service-connected disabilities render a particular veteran unemployable. VAOPGCPREC 6-96 (August 16, 1996). 2. Entitlement to a TDIU The Board previously raised this TDIU claim as an element of the Veteran’s appeal for an increased PTSD evaluation. See Rice v. Shinseki, 22 Vet. App. 447, 454-55 (2009). Currently, based on the decision above, the Veteran’s combined evaluation is 80 percent, effective December [REDACTED], 2013. Prior to that date, the Veteran’s combined evaluation is 60 percent, with the highest rated disability evaluated as 50 percent disabling. Therefore, the Veteran does not meet the schedular requirements for a TDIU prior to December [REDACTED], 2013, and the Board will examine whether his case should be submitted to the Director for extraschedular consideration. As noted above, referral is merited in cases where the evidence suggests the Veteran is precluded from substantially gainful employment by reason of service-connected disabilities. Aside from PTSD, the Veteran is also service-connected for chronic left epididymitis and for a left shoulder muscle disability throughout the appeal period, and for hearing loss and tinnitus effective September 16, 2013. In August 2017, the Veteran submitted a VA Form 21-8940, reporting that he completed four years of high school and received welding training in service. He reported that he last worked in 2008, in his own welding business. The Veteran reported that he owned and ran this welding business since 1992, and prior to that worked as a welder in a shipyard. His testimony at the July 2019 Board hearing reflects this report as well. The Veteran further testified that he left the shipyard welding job because it caused a lot of panic attacks and he subsequently missed a lot of work to deal with the anxiety and panic attacks. He also testified that he had increasing difficulty getting along with coworkers and supervisors. It was for these reasons that the Veteran started his own welding business, so he could control when to work and with whom to work. He testified that he continues to have difficulty relating to people due to angry outbursts. The Veteran also testified that he would have his son drive when they worked together in his business, so that he could drink alcohol while they were in the car. In October 2011, the Veteran sought treatment for left shoulder pain, and completed a course of physical therapy to increase strength in the left shoulder in November and December 2011. At a February 2012 VA examination, the examiner opined that the left shoulder disability precluded the Veteran from lifting heavy objects over his head. The Veteran’s VA treatment records reflect that he is followed for left shoulder pain throughout the appeal period, and completed another course of physical therapy for left shoulder pain in December 2019. After review of the evidence of record, including the PTSD evidence discussed in detail above, the Board finds that a TDIU is warranted in this case. To begin with, the Board notes that, throughout the appeal period, the Veteran regularly suffered from severe panic attacks involving chest pressure, shaking hands, difficulty breathing, and his heart racing. These panic attacks are triggered frequently and by common situations, such as driving, using an elevator, being in a room without windows, or dealing with crowds. Even with years of regular treatment learning coping mechanisms, the Veteran continued to experience panic attacks, as well as to worry about triggering further panic attacks. In addition to the Veteran’s panic attacks, the PTSD symptoms include abuse of alcohol, making it dangerous for the Veteran to drive when he was regularly consuming alcohol during the day and the evening. Further, the Veteran’s left shoulder disability prevents him from lifting heavy objects overhead, which would preclude most physical labor. Although the Veteran has experience running his own business for many years, using these skills in an office environment is precluded by the Veteran’s PTSD symptoms, primarily the frequent panic attacks, but also the angry outbursts, which would affect his ability to get along with supervisors, coworkers, and clients. Therefore, the Board finds a TDIU is warranted beginning December [REDACTED], 2013, the date the Veteran meets the schedular requirements set out in the regulations. For the period prior to December [REDACTED], 2013, the Board finds that referral to the Director, Compensation Services, is warranted. REASONS FOR REMAND Entitlement to a TDIU prior to December [REDACTED], 2013, is remanded. There is evidence of unemployability due to service-connected disabilities in the period prior to December [REDACTED], 2013; however, the Veteran does not meet the schedular requirements for a TDIU during this period. As discussed above, the Board finds this case should be referred to the Director, Compensation Service, for extraschedular consideration of entitlement to a TDIU for this period. The matter is REMANDED for the following action: Refer the claim to the Director, Compensation Service, for consideration of whether a TDIU is warranted on an extraschedular basis prior to December 13, 2013. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Josey, 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.