Citation Nr: 21066768 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 15-36 695 DATE: November 2, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted beginning August 26, 2014. FINDING OF FACT The Veteran is unable to work due to his service-connected disabilities. CONCLUSION OF LAW The criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 1969 to January 1972. In May 2019, the Board granted the issue of entitlement to an initial rating of 50 percent, and no higher, for posttraumatic stress disorder (PTSD) and remanded the issue of entitlement to a TDIU for additional evidentiary development. The remaining issue on appeal has been returned to the Board for appellate review. As noted in the May 2019 Board remand, the issue of entitlement to a TDIU was considered as raised by the record in connection with the claim for entitlement to a higher initial rating for PTSD (the date of claim for service connection for PTSD was on August 26, 2013). See Rice v. Shinseki, 22 Vet. App. 447 (2009). 1. A TDIU is granted Total disability is considered to exist when there is any impairment 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). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability: that is, 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. In such an instance, if there is only one service-connected disability, it must be rated at 60 percent or more; if there are two or more service-connected disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.19 (2015); Van Hoose v. Brown, 4 Vet. App. 361 (1993). Prior to July 9, 2021, the criteria for a schedular TDIU were not met, because the Veteran had one service connected disability that was compensable: PTSD was rated 50 percent disabling. His hearing loss was noncompensable. When the applicable percentage standards set forth in 38 C.F.R. § 4.16(a) are not met, the issue of entitlement to a TDIU may be submitted to the Director of the Compensation Service for extraschedular consideration where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b) (2016); Fanning v. Brown, 4 Vet. App. 225 (1993). An opinion by the Director of the Compensation Service regarding extraschedular consideration was received and associated with the record in May 2020. Because the Director of the Compensation Service has already addressed an extraschedular TDIU, the Board is permitted to grant one in the first instance. The Director's opinion is not evidence, it is a decision that is reviewed de novo by the Board. Wages v. McDonald, 27 Vet. App. 233, 239 (2015). In other words, it is not binding on the Board. Beginning July 9, 2021, service connection was granted for Parkinson's disease and disabilities related to Parkinson's disease and the criteria for consideration of a schedular TDIU were met. Pursuant to the May 2019 Board remand, VA received the Veteran's completed VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) in June 2019. The Veteran asserted his PTSD prevents him from securing or following any substantially gainful occupation, he last worked full time and became too disabled to work in March 1996, and documented employment with the state police department from July 1972 to March 1998 for 40 hours per week. He also reported he "did consultation work over the years but all that work was handled from home or over the phone with occasional visits [and he] also attempted to volunteer work over the years, and [he] just could [not] do it." Additionally, a completed VA Form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefits) from the state police department was received by VA in June 2019. Review of the May 2014 VA examination report for PTSD shows the Veteran reported he was employed as a state police department from 1972 until he retired in 1996. He also noted working several hours a month for the state law enforcement accreditation program at which his duties include giving presentations. Review of the record most recently shows the Veteran reported an October 2021 VA examination for hearing loss and tinnitus that he has "increasing trouble deciphering words, trouble with conversation or general talking[,] ... [i]t is difficult to talk with [his] customers and communication is essential[, and] [i]t interferes with [his] business." In November 2020, vocational expert P. C. stated that the Veteran could not work because of his service-connected PTSD. P. C. explained that his PTSD made it difficult for him to interact with others in an appropriate manner. He had difficulty with crowds and had frequent panic attacks. His prior employment history was in law enforcement, and P. C. stated that a law enforcement job "...does not provide him with the opportunity to avoid such triggers and he has no occupational development that would allow for alternative opportunities." P. C.'s opinion is well reasoned and is probative evidence in support of the Veteran's claim. The preponderance of the evidence is in support of the Veteran's claim. A TDIU is granted for the entire appeal period. An extraschedular TDIU is granted from August 26, 2013, and a schedular TDIU is granted from July 9, 2021. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Carter, 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.