Citation Nr: 21004554 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 19-07 106 DATE: January 27, 2021 REMANDED The claim of entitlement to an effective date earlier than November 24, 2008 for the assignment of a total disability rating based on individual unemployability due to service-connected disability (TDIU), on an extraschedular basis, is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1968 to February 1970. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a March 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which, in part, granted a TDIU effective November 24, 2008. The Veteran disagreed with the effective date assigned and perfected this appeal. In August 2019, the Board issued a decision denying an effective date earlier than November 24, 2008 for the assignment of a TDIU. Thereafter, the Veteran appealed the August 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2020 Joint Motion for Remand (Joint Motion), the parties moved the Court to vacate the August 2019 decision. The claim of entitlement to an effective date earlier than November 24, 2008 for the assignment of a TDIU, on an extraschedular basis, is remanded. By way of history, the Veteran submitted an initial formal claim for a TDIU in May 2010. By rating decision dated in April 2011, the RO denied a TDIU, finding that the Veteran did not meet the schedular criteria for a TDIU. The Veteran disagreed with this decision but was not provided with a statement of the case. Subsequently, by rating decision dated in November 2012, the RO awarded a 100 percent rating for the Veteran’s service-connected posttraumatic stress disorder (PTSD) effective June 13, 2011. In August 2016, the Board granted a 70 percent disability rating for the Veteran’s PTSD effective November 24, 2008, the date of medical evidence showing an increase in severity of the Veteran’s PTSD. The Board also took jurisdiction of the TDIU issue pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009) and remanded the issue in order to obtain income information to verify the Veteran’s assertion that he could not work and earn a substantially gainful income between 2007 and 2011. By rating decision dated in March 2017, the RO effectuated the award of a 70 percent disability rating for the Veteran’s PTSD effective November 24, 2008 and also assigned a TDIU effective November 24, 2008 as such is the date that the Veteran first met the schedular criteria for a TDIU. While the Veteran appealed the August 2016 Board decision pertaining to the assignment of a higher rating for the Veteran’s PTSD prior to November 24, 2008 to the Court, the decision was affirmed by the Court in December 2017. The Veteran disagreed with the effective date of November 24, 2008 for the assignment of a TDIU assigned in the March 2017 rating decision and perfected this appeal. Specifically, he contends that an effective date of April 24, 2007, the date of the Veteran’s claim for service connection for PTSD as well as the date the Veteran was found to be unemployable in an October 2015 private report, is the appropriate effective date for his TDIU. A TDIU may be assigned where the combined rating for the veteran’s service-connected disabilities is less than total if the disabled veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.  Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a).  In this case, the Veteran has combined disability ratings of 20 percent beginning October 11, 2001, 30 percent beginning May 2, 2006, 50 percent beginning April 24, 2007, 80 percent beginning November 24, 208, and 100 percent beginning June 13, 2011.  The Veteran has met the minimum schedular criteria for a TDIU since November 24, 2008 pursuant to 38 C.F.R. § 4.16(a). Even though the Veteran does not qualify for a TDIU prior to November 24, 2008 pursuant to 38 C.F.R. § 4.16(a), it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled.  Therefore, rating boards should submit to the Director, Compensation Service, for extra-schedular consideration 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). 38 C.F.R. § 4.16(b).  The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance.  Bowling v. Principi, 15 Vet. App. 1 (2001).  On his May 2010 claim for TDIU, the Veteran reported that he stopped working full-time in 1997, but that he worked part-time in real estate sales, earning as much as $1,000 per month from 2005 to 2009. Notably, in an October 2015 statement Dr. E.T. wrote that the Veteran’s PTSD symptoms more closely represented a 70 percent disability rating beginning April 24, 2007 and, in her opinion, he should have been awarded a TDIU as of that date. A review of the record shows that the Veteran has been in receipt of Social Security disability benefits since June 1, 2006 due to a nonservice-connected back disability and diabetes. Pursuant to the August 2016 Board remand, the Veteran submitted tax returns showing that he had an adjusted gross income of $27, 282 in 2007 and an adjusted gross income of $47,810 in 2008 which exceeds the Census Bureau’s poverty thresholds for two people in 2007 and 2008. However, as noted in the August 2020 Joint Motion, a review of the Veteran’s tax returns shows that the bulk of this income is the result of amounts recorded under line 16a, for pensions and annuities, and 20a for social security benefits. Further, no “wages, salaries, or tips” from line 7 are recorded. As such, it appears that the Veteran was neither substantially nor gainfully employed in 2007 and 2008. Given the fact that the Veteran was neither substantially nor gainfully employed in 2007 and 2008 along with the October 2015 medical opinion from Dr. E.T. finding that the Veteran was unemployable due to his service-connected PTSD beginning April 24, 2007, under the provisions of 38 C.F.R. § 4.16(b), the Board finds that the TDIU claim should be submitted to the Director of Compensation Service for a determination as to whether a TDIU should be awarded on an extra-schedular rating basis prior to November 24, 2008. The matter is REMANDED for the following action: Refer this case to the Under Secretary for Benefits of the Director, Compensation Service, for consideration of assignment of an extraschedular TDIU under the provisions of 38 C.F.R. § 4.16(b) prior to November 24, 2008.  Attention is invited to the October 2015 statement from Dr. E.T. wherein she wrote that the Veteran’s PTSD symptoms more closely represented a 70 percent disability rating beginning April 24, 2007 and, in her opinion, he should have been awarded a TDIU as of that date. Attention is also invited to the fact that the Veteran has been in receipt of Social Security disability benefits since June 1, 2006 due to a nonservice-connected back disability and diabetes.  See VBMS, documents labeled Medical Treatment Record – Non-Government Facility, receipt date 12/6/15, page 6; Third Party Correspondence, receipt date 11/6/07, pages 7 and 12. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board April Maddox, 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.