Citation Nr: 21064166 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 15-33 972 DATE: October 19, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from April 1967 to July 1968. This matter was previously before the Board of Veterans' Appeals (Board) in July 2019 and again in June 2021. In the June 2019 decision, the Board denied entitlement to TDIU, and the Veteran properly appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In a January 2021 joint motion for partial remand (JMPR), the Court vacated the denial for TDIU and remanded the matter back to the Board. In the June 2021 Board decision, the Board remanded the matter to comply with the January 2021 JMPR. The matter has now come back before the Board for adjudication. TDIU may be assigned when the schedular rating is less than total, where, if there is only one disability, the disability is rated at 60 percent or more, or where, if there are two or more disabilities, at least one disability is rated 40 percent or more and there is sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In this case, the Veteran is currently in receipt of service connection for posttraumatic stress disorder (PTSD) with a rating of 10 percent from April 24, 2013, 20 percent from February 29, 2009, and 50 percent effective November 24, 2008; degenerative arthritis of the thoracolumbar spine with a 20 percent rating effective November 24, 2008; and radiculopathy of the right lower extremity associated with degenerative arthritis of the thoracolumbar spine with a 10 percent rating effective April 24, 2013. Consequently, he is not eligible for TDIU on a schedular basis as his combined rating is 60 percent, and, therefore, the only question for the Board is whether TDIU is warranted on an extraschedular basis. See 38 C.F.R. § 4.16(b). At the outset, the Board acknowledges that it may not assign an extraschedular rating in the first instance. Bowling v. Principi, 15 Vet. App. 1, 9-10 (2001). Where there is plausible evidence that a claimant seeking extraschedular TDIU is unable to secure and follow a substantially gainful occupation, and there is no affirmative evidence to the contrary, the Board is required to remand the claim for referral to the Director of Compensation Service to consider entitlement on an extraschedular basis. Id.; 38 C.F.R. § 4.16(b). The medical records establish that the Veteran's back condition impacts his ability to work and he is only able to perform sedentary work in connection with his service-connected back disability. See March 2019 VA Back Conditions Disability Benefits Questionnaire (DBQ). As for the Veteran's service-connected PTSD, the examiner found that the Veteran has difficulty maintaining concentration and focus on work over a period of time, tends to skip from one task to another without completing the prior task; has significant difficulty functioning around other people, has difficulty functioning as a team member, and feels uncomfortable around others; and has other mental health problems or symptoms that interfere significantly with the ability to work, such as chronic panic attacks. See VA Behavioral Health Exams Individual Unemployability Statement. Furthermore, the medical records show that the Veteran has recurrently severe panic attacks, memory problems, impaired social functioning, and possible delusions. See Social Security Administration Records. As there is evidence that the Veteran's service-connected disabilities substantially impair his ability to work, the TDIU issue is remanded for referral to the Director, Compensation and Pension Service for extraschedular consideration. The matters are REMANDED for the following action: Refer the application for TDIU to the Director of Compensation Service for a determination as to whether the Veteran is entitled to a TDIU on an extraschedular basis in accordance with the provisions of 38 C.F.R. § 4.16(b). A full statement as to the Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be provided. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Glaeser, Jennifer 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.