Citation Nr: 21062916 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 17-50 431A DATE: October 12, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) is granted effective November 13, 2013. FINDING OF FACT For the period from November 13, 2013 onward, the Veteran meets the criteria for schedular consideration for TDIU, and the preponderance of the evidence indicates that his service-connected disabilities prevented him from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for a total disability rating based upon individual unemployability have been met for the period from November 13, 2013 onward. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16(b). REMANDED Entitlement to a total disability rating based upon individual unemployability on an extraschedular basis prior to November 13, 2013 is remanded. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from August 1969 to December 1972. In the Board of Veterans' Appeals' (Board) September 2018 decision, it found that a claim for TDIU had been raised by the record and remanded the claim for additional development and adjudication. The claim is now before the Board again. 1. Entitlement to TDIU for the period from November 13, 2013 onward The Veteran asserts that his service-connected disabilities prevent him from securing or following a substantially gainful occupation. Total disability is considered to exist when there is any impairment that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). If there is only one such disability, this shall be ratable at 60 percent or more, and 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 disability or more. 38 C.F.R. § 4.16(a). Disabilities resulting from a common etiology or a single accident will be considered as one disability for TDIU purposes. Id. In the Veteran's current appeal, service connection has been granted for psychiatric, sleep apnea, headache, diabetes, right epididymitis, and erectile dysfunction disabilities. See September 2020 codesheet. His combined disability rating is 60 percent from July 28, 2010, 50 percent from December 31, 2012, 70 percent from November 13, 2013, and 90 percent from December 29, 2014. During the period from July 28, 2010 to December 31, 2012, when his combined disability rating was 60 percent, the Veteran's highest rated disability was his PTSD, which was rated as 50 percent disabling. Id. Accordingly, he meets the criteria for schedular consideration for TDIU from November 13, 2013 onward. In a February 2014 statement by a VA psychiatrist, the psychiatrist found that his PTSD resulted in sleep impairment, nightmares, depression, and mood problems despite medication and therapy, and he was unable to work due to his PTSD. In a March 2017 buddy lay statement, the Veteran's brother stated that his brother experienced disorientation, concentration problems, depression, memory issues, difficulty coping with stressful situations, and other problems as result of his PTSD. In another March 2017 buddy lay statement, the Veteran's sister echoed her brother's assertions and stated that she did not believe the Veteran could sustain gainful employment because of his PTSD. In a January 2018 employability opinion by a private psychologist, the physician found that the Veteran would miss 3 days of work or more per month due to his mental health problems. He would need to leave work early 3 or more days per month, and he would have difficulty concentrating for at least 7 hours of an 8-hour workday at least 3 days per month. Additionally, he would respond to normal pressure or constructive criticism in an angry manner more than once per month. During the Veteran's January 2018 Disability Benefits Questionnaire (DBQ) for PTSD, a psychiatrist noted diagnoses for PTSD and an adjustment disorder with depressed mood. They found that the Veteran's psychiatric condition resulted in occupational and social impairment in most areas. In an accompanying employability opinion, the psychiatrist found that the Veteran's PTSD prevented him from securing or following a substantially gainful occupation. In a TDIU application received May 2020, the Veteran stated that he last worked fulltime in September 2010, and he became too disabled to work in December 2010. In a July 2020 Request for Employment Information, the Veteran stated that he last worked fulltime as a chauffeur in September 2010. The Board finds that the preponderance of the evidence indicates that the Veteran's PTSD and other service-connected disabilities have prevented him securing or following a substantially gainful occupation during the period from November 13, 2013 onward. Accordingly, the Veteran's claim for TDIU is granted, effective November 13, 2013. REASONS FOR REMAND 1. Entitlement to TDIU for the period prior to November 13, 2013 is remanded. In the Veteran's current appeal, service connection has been granted for psychiatric, sleep apnea, headache, diabetes, right epididymitis, and erectile dysfunction disabilities. See September 2020 codesheet. His combined disability rating is 60 percent from July 28, 2010, 50 percent from December 31, 2012, 70 percent from November 13, 2013, and 90 percent from December 29, 2014. During the period from July 28, 2010 to December 31, 2012, when his combined disability rating was 60 percent, the Veteran's highest rated disability was his PTSD, which was rated as 50 percent disabling. Id. Accordingly, he does not meet the criteria for schedular consideration for TDIU prior to November 13, 2013. The evidence of record suggests that the Veteran's service-connected disabilities may have prevented him from working since 2011 or late 2010. See January 2018 psychologist's opinion and accompanying Posttraumatic Stress Disorder (PTSD) Disability Benefits Questionnaire (DBQ) and October 2014 VA examination for PTSD. The Board does not have the authority in the first instance to award an extraschedular TDIU prior to referral to the Director of Compensation and Pension Service. Consequently, the issue of entitlement to TDIU prior to November 13, 2013is referred to the Director of the Compensation Service (Director) for extraschedular consideration pursuant to 38 C.F.R. § 4.16(b). The matters are REMANDED for the following action: Refer the Veteran's claim for TDIU to VA's Director of Compensation Service for extraschedular consideration for the period prior to November 13, 2013. Include a copy of this remand as well as a full statement as to the Veteran's service-connected disabilities, employment history, education and vocational attainment, and all other factors having a bearing on the issue. See 38 C.F.R. § 4.16(b). All documentation from this entity must be added to the claims file. Particular attention should be given to January 2018 psychologist's opinion and accompanying PTSD DBQ, as well as the October 2014 VA examination for PTSD. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Hicks, 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.