Citation Nr: 21062347 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 13-18 414A DATE: October 7, 2021 ORDER Entitlement to a total disability rating based on individual unemployability on an extraschedular basis is granted. FINDING OF FACT The Veteran is unable to secure and follow a substantially gainful occupation due solely to service-connected disability. CONCLUSION OF LAW The criteria for TDIU on an extraschedular basis are met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1969 to March 1971. This matter was previously before the Board in March 2018. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a May 2019 order, the Court remanded the case to the Board for action consistent with a May 2019 Joint Motion for Remand (JMR). The Board subsequently remanded the matter in April 2020. The directives having been substantially complied with, the matter again is before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to a total disability rating based on individual unemployability on an extraschedular basis 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. 38 C.F.R. § 4.16. A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340 (a)(1), 4.15. TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is a sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16 (a). For the purposes of determining rating level, disabilities resulting from a common etiology or affecting a single body system are considered a single disability. 38 C.F.R. § 4.16 (a). Where these percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16 (b). The Board does not have the authority to assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Rating boards will refer to the Director of the Compensation Service for extraschedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16 (a). The Board may review the decision of the Director with regard to entitlement to a TDIU under 38 C.F.R. § 4.16 (b) and make an independent determination on this matter. Anderson v. Shinseki, 22 Vet. App. 423 (2009). The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16 (b). Here, the Veteran is service-connected for posttraumatic stress disorder rated at 50 percent disabling, tinnitus rated at 10 percent disabling, and bilateral hearing loss with a noncompensable rating. This does not meet the schedular requirement for TDIU. During adjudication of the claim, the RO obtained a determination from the Director. The Director found that an extraschedular TDIU was not warranted because the record did not show symptoms that would indicate a totally disabling mental health condition is present. When submitting the claim to the Director for a recommendation, the DRO recommended a grant of TDIU on an extraschedular basis due to evidence showing that the Veteran's retirement was precipitated by his mental health symptoms, which were causing occupational impairment. The Veteran last worked in June 2010. He had worked as a corrections officer since 1987. He has one year of college education. The Veteran's mental health provider submitted a letter in September 2011 stating that the Veteran suffered from anxiety, nightmares, and flashbacks. She indicated that he experienced panic disorders once or twice a month. Further, she stated that his retirement was due to his difficulties performing his job due to his mental health symptoms. The Veteran received a VA examination in November 2011. The examiner determined that the Veteran had no occupational or social impairment and stated that the Veteran's symptoms were controlled by continuous medication. A March 2013 Disability Benefits Questionnaire, again submitted by the Veteran's mental health provider, stated that he was "unable to work effectively around people or in stressful situations." A September 2015 note stated that the Veteran withdraws from his family once every other month and isolates himself. The provider mentioned in a March 2016 letter that the Veteran had periods of unprovoked irritability with periods of violence against inanimate objects, obsessive rituals, and that he was unable to function in a work setting. In a February 2020 letter, the provider again noted that the Veteran had difficulty concentrating and was unpredictable and volatile. The Board finds the ongoing treatment notes from the Veteran's regular mental health provider more probative than the single VA examination from November 2011. Therefore, the Board finds that the evidence weighs in favor of a finding that the Veteran was unable to secure or follow substantially gainful employment due to his service-connected disabilities. The Veteran had limited education and work experience, meaning it would have been difficult for him to find a new job. His PTSD caused him to have anxiety and panic attacks regularly, as well as affecting his concentration and causing angry outbursts. The Board has considered the Central Office determination as to extraschedular TDIU and disagrees with the Director's opinion. While the record shows that the Veteran retired, the evidence is clear that his retirement at that time was due to his mental health symptoms, as noted by his mental health provider at the time. TDIU on an extraschedular basis is therefore granted for the entire appeal period. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Creegan, Amanda 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.