Citation Nr: 21064853 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 13-21 959 DATE: October 21, 2021 REMANDED The claim of entitlement to a total disability rating due to individual unemployability (TDIU) prior to April 29, 2011 is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1973 to October 1977. He died in July 2014, during the pendency of his claims. His surviving spouse has been substituted as the Appellant in this appeal. This appeal is from a September 2011 rating decision. In May 2021, this issue was remanded to the AOJ (agency of original jurisdiction). In an August 2021 SSOC, the AOJ found the issue of TDIU was moot from April 29, 2011, and the Board agrees. The claim for TDIU was made prior to April 29, 2011, and the Board finds that a remand is warranted to address this earlier period. 1. The claim of entitlement to a TDIU is remanded. The Board last remanded this claim as inextricably intertwined with the rating that would soon be assigned for his prostate cancer, service connected as of that decision, and the last remaining service connection claim on appeal (for left leg arterial insufficiency). Since then, the Veteran's prostate cancer was assigned an effective date of April 29, 2011, and assigned a 100 percent rating. His left leg arterial insufficiency was granted service connection effective from August 30, 2011, at 20 percent disabling. He was also awarded special monthly compensation (SMC) at the housebound rate effective from April 29, 2011. The claim for TDIU was denied on the basis that his prostate cancer was rated 100 percent disabling starting from April 29, 2011, thus mooting the TDIU claim, and that he did not meet the schedular requirements prior to April 29, 2011. When any impairment of mind or body sufficiently renders it impossible for the average person to follow a substantially gainful occupation, that impairment will be found to be causing total disability. 38 C.F.R. § 3.340. Where a veteran's schedular rating is less than total, a total disability rating may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service connected disabilities, provided certain requirements are met. Under 38 C.F.R. § 4.16(a), if the veteran has only one such disability, then this disability shall be ratable at 60 percent or more; if the veteran has two or more such disabilities, then 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). Here, prior to April 29, 2011, the Veteran does not meet the schedular requirements for a TDIU. His PTSD was rated 50 percent effective from June 28, 2010, but his combined rating was only 60 percent. When a veteran fails to meet the schedular requirements for eligibility for a total rating as set forth in 38 C.F.R. § 4.16(a) the case may be submitted to the Director of the Compensation Service for extraschedular consideration. 38 C.F.R. § 4.16(b). The Board is precluded from granting a total rating under section 4.16(b) in the first instance. Here, the record shows the Veteran was service connected for PTSD, the right ear hearing loss, tinnitus, and right knee. His previous work experience was in housekeeping and landscaping. He had three years of college, which he attended through a vocational rehabilitation program with a state program. An attempt shall be made to obtain records from that, to the extent possible, given the time that has lapsed. Available records show he was suspended from study in December 2006, because he was unable to maintain a minimum GPA. The October 2009 VA examiner noted the Veteran would have the following functional limitations in the ability to work due to his PTSD: difficulty in maintaining concentration, in screening out external stimuli, in maintaining stamina throughout the day, in managing time pressure and deadlines, in initiating interpersonal contact, in focusing on multiple tasks simultaneously, and in responding to negative feedback. At the March 2011 VA examination, the Veteran reported having trouble concentrating, poor sleep, irritability, anxiety, hypervigilance, and trouble getting along with other employees at work. The examiner noted he has impaired attention and thought processes, in that he gets confused, forgets what he is doing, and has memory impairment. Finally, he opined that the Veteran had severely restricted psychosocial functioning and that PTSD was part of the cause of the Veteran's inability to work. The January 2009 VA hearing loss examiner opined the Veteran's hearing loss would have "significant effects" on occupational functioning, and it was noted the Veteran reported trouble hearing on the phone. At the February 2011 VA knee examination, the Veteran reported having buckling of the knee, and trouble standing or walking for prolonged periods. Based on this evidence, particularly the March 2011 VA examiner's opinion regarding the impact of PTSD on the Veteran's employability, the Board finds that the issue should be referred to the Director of the Compensation Service. The matters are REMANDED for the following action: 1. Ask the Appellant for authorization to obtain the Veteran's records of Vocational Rehabilitation through the Utah State Office of Rehabilitation. 2. After completion of the above, forward the claims file to the Director of the Compensation for a decision on whether an extraschedular TDIU is warranted prior to April 29, 2011. Nathaniel J. Doan Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Gibson 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.