Citation Nr: 21005023 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 10-16 526 DATE: January 28, 2021 ORDER Entitlement to an extraschedular total disability rating based on individual unemployability (TDIU) due to service-connected major depressive disorder is granted from March 20, 2008. FINDING OF FACT The Veteran’s service-connected major depressive disorder has prevented him from securing or following a substantially gainful occupation since March 20, 2008. CONCLUSION OF LAW The criteria for an extraschedular TDIU are met since March 20, 2008. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from February 1962 to January 1964. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2008 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the appeal for further development in September 2013. In August 2019, the Board again remanded the appeal for referral to the Director of VA’s Compensation Service (Director) for consideration of an extraschedular rating. TDIU Entitlement to an extraschedular TDIU due to service-connected major depressive disorder is granted from March 20, 2008. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled 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, and that, if there are two or more such 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. 38 C.F.R. § 4.16(a). The above notwithstanding, it is the policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of a service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). Therefore, if a veteran fails to meet the schedular requirements set forth in 38 C.F.R. § 4.16(a), an extraschedular rating may nevertheless be considered under 38 C.F.R. § 4.16(b) where a veteran is unemployable due to service-connected disabilities. The Board is prohibited from assigning an extraschedular TDIU under 38 C.F.R. § 4.16(b) in the first instance without initially referring the claim to the Director. See Floyd v. Brown, 9 Vet. App. 88, 95 (1996). The Board remanded the claim for such consideration in August 2019, which was provided in November 2020. Although the Board is required to obtain the Director’s decision before awarding extraschedular TDIU benefits in the first instance, it is not bound by the Director’s decision or otherwise limited in its scope of review of that determination. Wages v. McDonald, 27 Vet. App. 233, 236-38 (2015) (citing 38 U.S.C. §§ 511(a), 7104(a) (2012); 38 C.F.R. § 4.16(b)). The Director’s decision is not evidence, but, rather, the de facto AOJ decision, and the Board must conduct de novo review of this decision. Wages, 27 Vet. App. at 238-39. The determination as to whether a veteran can secure or follow a substantially gainful occupation includes an economic component and a noneconomic component. The economic component means that a veteran must not receive income from employment outside of a protected environment that exceeds the poverty threshold for one person. The noneconomic component requires consideration of a veteran’s ability to secure or follow substantially gainful employment, including factors such as the veteran’s history of education, skill, and training, as well as his or her ability to perform the physical and mental activities required by the occupation in question. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). Here, the Veteran submitted an informal claim for a TDIU on March 20, 2008, with a formal application submitted in April 2008. Thus, the appeal period before the Board is from March 20, 2008, the date VA received his informal claim. The Veteran is service-connected for major depressive disorder, rated as 50 percent disabling from January 1, 1983, 100 percent disabling from July 24, 1987, and 50 percent disabling from October 1, 1987. Thus, he does not meet the schedular criteria for a TDIU at any time during the appeal period. See 38 C.F.R. § 4.16(a). Therefore, the issue becomes whether an extraschedular TDIU is warranted. Here, the Veteran has a high school diploma. His last known full-time employment was in 1984 as a croupier at Hotel San Juan. See April 2008 VA Form 21-8940. Thus, the Veteran meets the economic component of an extraschedular TDIU for the entire appeal period. Furthermore, the evidence of record indicates that the Veteran has been unemployable due his service-connected major depressive disorder since March 20, 2008. Specifically, during his April 2008 VA examination the Veteran reported retiring from his last employment in the 80s due to his “nerves.” The April 2008 examiner stated that the Veteran was able to obtain, perform, and secure a financial gainful employment and that his psychiatric condition was not severe enough to render him unemployable. On his April 2008 VA Form 21-8940, the Veteran reported that he had always tried to work, but that he stopped working in 1984 when he started receiving Social Security Administration (SSA) disability benefits. Evidence from SSA shows that the Veteran was found to be entitled to SSA disability benefits effective February 2003 due to the primary condition of generalized anxiety disorder with depressive traits. Additionally, review of the SSA records showed that the Veteran had an assessment in April 1984 by Dr. W. G. A. that indicated that the Veteran left work in July 1982 due to psychological symptoms. Dr. W. G. A. further stated that he did not consider the Veteran able to engage or to sustain any work even under minimal stressful work situations. See SSA records received in August 2008 and November 2008. During a July 2009 VA examination, the Veteran reported retiring from his job once he was able to obtain SSA benefits for his depression. The examiner noted the Veteran had moderate to severe symptoms of depression with reduced reliability and productivity due to his mental disorder symptoms, and that he was socially limited to relatives. The July 2009 VA examiner indicated that the Veteran’s symptoms were not severe enough either to interfere with occupational and social functioning or to require continuous medication. In a private April 2010 opinion, Dr. N.A.O. stated that the Veteran was not able to perform the duties of a full-time work and had difficulties understanding commands. She emphasized that the Veteran was very irritable and anxious, and could not handle stress or react appropriately to his physical and social environment. She noted his depressed mood and accompanying low energy, sense of worthlessness, isolative behavior, suicidal thoughts and two previous hospitalizations for suicide attempts. Based on these symptoms, Dr. N.A.O. determined that the Veteran not able to perform a full day of work and ultimately opined that it was more probable than not that due to his psychiatric condition he was unemployable. Notably, neither VA examiner discussed the impact of the Veteran’s prior hospitalizations and suicidal ideation on his employability. Lastly, post-service VA treatment records indicate continuing treatment for depression with medication and note the Veteran’s ongoing unemployment. Given the Veteran’s receipt of SSA disability benefits for a psychiatric disorder, his documented suicidal ideation and prior hospitalizations, and the opinions of Drs. W.G.A. and N.A.O., the Board finds that a preponderance of the evidence demonstrates that the Veteran is unemployable due to his service-connected major depressive disorder. Accordingly, for reasons and bases outlined above, an extraschedular TDIU is warranted from March 20, 2008. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Asante 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.