Citation Nr: 21069580 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 18-30 355 DATE: November 18, 2021 ORDER An effective date of February 6, 1997, for service connection of other specified trauma and stressor related disorder is granted. From February 11, 2009, a 50 percent rating, but no higher, for other specified trauma and stressor related disorder is granted. The claim of entitlement to a rating higher than 70 percent for the period starting June 8, 2016, for other specified trauma and stressor related disorder is denied. REMANDED The claim of entitlement to a TDIU prior to June 8, 2016, is remanded. FINDINGS OF FACT 1. The Veteran's first claim for service connection for an acquired psychiatric disability was received on February 6, 1997. The record does not contain any formal or informal claims for service connection for an acquired psychiatric disability prior to then. That claim was finally denied in March 2007. He did not appeal that decision. His claim was reopened and granted following receipt of records from the Department of the Army that corroborated his reported stressful event during service. These records were in existence and could have been previously obtained. Medical opinions dated May and June 1999 attributed the Veteran's diagnoses to the events described in the newly received records. 2. For the period from February 11, 2009 to June 7, 2016, the Veteran's service-connected acquired psychiatric disabilities manifest as social and occupational impairment with reduced reliability and productivity. 3. For the period starting from June 8, 2016, and onward, his disabilities manifest as social and occupational impairment with deficiencies in most areas. CONCLUSIONS OF LAW 1. The criteria are met for an effective date of February 6, 1997, for the grant of service connection for other specified trauma and stressor related disorder with TBI residuals. 38 U.S.C. §§ 5110, 7105; 38 C.F.R. §§ 3.104, 3.156(c), 3.400, 20.1103. 2. The criteria are met for a 50 percent rating for other specified trauma and stressor related disorder, starting February 11, 2009. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.400, 4.7, 4.130, DC 8045-9410. 3. The criteria are not met for a rating higher than 70 percent for the period starting June 8, 2016, for other specified trauma and stressor related disorder. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 3.340, 3.341, 3.400, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1974 to March 1975. This appeal is from a November 2015 rating decision. In a June 2019 decision, the Board denied the Veteran's claim for an earlier effective date for other specified trauma and stressor related disorder (hereinafter, "acquired psychiatric disability"). He appealed to the United States Court of Appeals for Veterans Claims, which vacated the denial and remanded it back to the Board for further consideration, as discussed in more detail below. In August 2020, the Board remanded the claims for an increased rating for his acquired psychiatric disability and for a TDIU for the issuance of a supplemental statement of the case (SSOC), which was achieved in September 2020. The Board notes that the Veteran was granted service connection for traumatic brain injury (TBI) in October 2019. TBI was assigned a 0 percent rating, and combined with his acquired psychiatric disability as a combined disability. In a May 2020 statement asserting disagreement, he argued that TBI should be a separated from his acquired psychiatric disability. He was advised, in July 2020, that consideration of his request required him to file a request for higher level review or an appeal to the Board, which he did not do. Accordingly, the Board does not have jurisdiction over the rating assigned based on his TBI, and the Veteran is advised to file a supplemental claim if he wishes to pursue a higher or separate rating. 1. An effective date of February 6, 1997, for service connection of other specified trauma and stressor related disorder is granted. The effective date for the Veteran's acquired psychiatric disability has been set by the AOJ (agency of original jurisdiction) as June 11, 2009. This was the date of receipt of a claim to reopen a previously denied claim for service connection for an acquired psychiatric disability. The claim had been previously denied on the basis that his service records did not corroborate his stressful incident, which he was able to prove happened just after the denial. He argues that the service department records he produced in support of his claim merited reconsideration of his initial claim, and the effective date should go back to his first compensation claim in 1980, or to a pension claim filed in 1988, or to his 1997 claim. Notably, the Court's remand of this issue to the Board indicated that the Board's June 2019 decision did not address this argument of whether the newly received service department records warranted an earlier effective date, which is the basis the Board is granting his claim in this decision. The Court also indicated that the Board failed to address an argument regarding whether a June 2007 motion for reconsideration could be considered an informal claim to reopen. Because the Board finds that an effective date earlier than June 2007 is appropriate, further discussion of the latter argument is not necessary. In general, the effective date of an award of disability compensation, in conjunction with a grant of service connection, shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. For claims that have been finally disallowed and require new and material evidence, the effective date is the date of receipt of the new claim or the date entitlement arose. 38 C.F.R. § 3.400(q). A finally disallowed claim generally requires new and material evidence to be reopened and considered on the merits. "New" evidence is evidence not previously submitted to agency decisionmakers. "Material" evidence relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). However, notwithstanding the provisions of Section 3.156(a), at any time after VA issues a decision on a claim, if VA receives or associates relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. 38 C.F.R. § 3.156(c). Indeed, under such circumstances, VA is required to reconsider the claim de novo. See Kisor v. Shulkin, 869 F.3d 1360 (Fed. Cir. 2017); George v. Shulkin, 29 Vet. App. 199 (2017); 38 C.F.R. § 3.156(c). This means that when relevant service records are newly associated with a claimant's file, VA has a duty to reconsider the veteran's previously denied claim on the merits. George, 29 Vet. App. at 205 (holding that VA had a duty to reconsider the appellant's 1997 claim for service connection for PTSD, even though service connection for PTSD was granted in 2007 with an effective date of 2003). The purpose of this exception is to put the veteran in the same position he or she would have been in had VA considered the records in the first place. Blubaugh v. McDonald, 773 F.3d 1310, 1313 (Fed. Cir. 2014). The term "relevant" in the context of section 3.156(c)(1) means noncumulative and pertinent to the matter at issue in the case. See Kisor, 869 F.3d at 1368-69. Where the newly obtained records do not remedy the defects of the prior claim and contain facts that were never in question, they are not "relevant" within the meaning of 38 C.F.R. § 3.156(c)(1). Id. at 1368-69 citing Blubaugh, 777 F.3d at 1314. Here, the Veteran's initial claim was received in February 1997. He reported a number of stressful incidents, but was unable to provide the names of the parties involved. Specifically, he reported that he had been involved in and witness to an incident wherein a fellow soldier asked him for help in dealing with personal assaults from another soldier. The Veteran advised that their superior officer should address the situation, but their officer refused, and in fact told the first soldier to follow through with his physical threats against the second soldier. The first solder ended up beating the second soldier with an iron bar, and threw him from a window. The Veteran was a witness in the subsequent court-martial. He reported that he could not remember the names of the aggressor or the victim, but that he could name some of the other witnesses that would have also been at the court-martial. He reported where it happened. His records that were available at that time showed he was only in that location for approximately five months. Attempts to locate the records were not successful. Even though the record contained positive medical opinions from May and June 1999 attributing his acquired psychiatric disability to his service, his claim was denied by the Board in March 2007. In May 2007, the Veteran obtained a copy of the testimony from the court-martial wherein he was a witness. It appears that he simply asked for a copy of his testimony from a general court-martial convened at a specific location in 1974, which was sufficient information for the Office of the Clerk of the Court, Department of the Army, US Army Judiciary, to locate the records. This is the same information that VA had, and could have used to obtain these records. As discussed, his claim was granted effective from the date of receipt of the claim to reopen on the basis of this new information corroborating his stressor, therefore the new evidence was relevant. Accordingly, the Board finds that the provisions of 38 C.F.R. § 3.156(c) control here, and that reconsideration of his initial claim must be undertaken. Service connection requires competent evidence showing: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and, (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). As mentioned, the record contained two medical nexus opinions, attributing his current diagnosis to the incident in service. The May 1999 private opinion indicates that the Veteran witnessed the beating of a man, and that he currently continues to have vivid memories of the incident, along with stress, anxiety, and a preoccupation with his physical condition. He opined that the evidence showed the Veteran's symptoms began in service. A June 1999 private opinion noted the Veteran had nightmares about the incident in service, and that his impairments were consistent with his history of traumatic events during service. He opined there was a strong likelihood that the incident in service was a cause of his current diagnoses. Accordingly, the Board finds that an effective date of February 6, 1997, the date of receipt of his first claim for service connection for an acquired psychiatric disability, is warranted. The Veteran has argued alternatively that he has been pursuing a claim for service connection for an acquired psychiatric disability since the early or late 1980s, and that his effective date for service connection should be even earlier than in 1997. The Board is not persuaded, as discussed further below. After review of the record, there was no formal or informal claim for service connection for an acquired psychiatric disability until February 6, 1997. Under current regulations, a specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). The term "application" or "claim" means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1. However, prior to March 2015, an informal claim for service connection was acceptable to establish a service connection claim. See 38 C.F.R. § 3.155(a) (2014) (repealed 2015). An informal claim included any communication or action indicating an intent to apply for one or more benefits. The communication must identify the benefit sought. Id. In order for a document to be recognized as an informal claim, "there must be a reasonable expectation for VA to act in the manner that the claimant intended." King v. Shinseki, 23 Vet. App. 464, 470 (2010). In determining whether an informal claim has been made, VA is not required to read the minds of the Veteran or his/her representative. Cintron v. West, 13 Vet. App. 251, 259 (1999). The Federal Circuit Court more recently clarified that "identification [of the benefit sought] need not be explicit in the claim-stating documents, but can also be found indirectly through examination of the evidence to which the documents themselves point when sympathetically read." Shea v. Wilkie, 926 F.3d 1362, 1368 (2019). The Court indicated that the adjudicator "must look beyond the four corners" of the claim in sympathetically determining what the claim-stating documents are seeking to obtain. Id. at 1369. However, the "mere presence of medical evidence" is not sufficient to indicate intent to apply for service connection or identify the benefit sought. Brannon v. West, 12 Vet. App. 32, 35 (1998). Regarding the Veteran's earlier claims, he filed a claim for compensation in December 1980 for a respiratory disability and for broken toes. He argued, in a January 1997 statement (received February 6, 1997), that his 1981 claim did not include any psychological evaluations, which the Board interprets as an argument that if he had been examined, a disability would have been identified. However, there was nothing of record at that time to suggest that service connection for an acquired psychiatric disability was desired or warranted. A review of the medical evidence from that time did not indicate the Veteran had any symptoms or diagnoses of an acquired psychiatric disability, and he did not so suggest from anything he filed in conjunction with that claim. Accordingly, the Board finds the record at the time of his first claim did not raise an informal claim for service connection for an acquired psychiatric disability. See Shea, 926 F.3d at 1368. The Board notes that his electronic file appears to show receipt of documents in December 1980 that show an acquired psychiatric disability and contain information regarding the Veteran's stressful incident. However, upon examination of those records, they were not received in 1980, but were duplicate exhibits to a motion for reconsideration filed in June 2007, and were simply mislabeled when uploaded into the file. His next claim in November 1984 was for nonservice-connected pension, which was denied in a January 1985 rating decision. The evidence of record at the time does not show any psychiatric symptoms at all, and therefore no psychiatric symptoms attributed to his service. There is nothing to suggest an informal claim was filed with the November 1984 claim. Thereafter, in a July 1989 statement, he filed an informal claim for "pension due to post traumatic stress disorder." In an October 1989 letter, the AOJ indicated that it was developing a service connection claim, to which the Veteran promptly responded that his claim was not related to his service but to his work. Thereafter, he obtained an attorney, who assisted him in pursuing and obtaining nonservice-connected pension, on the basis that he was totally and permanently disabled due to an acquired psychiatric disability that was attributed to his post-service civilian employment. He submitted medical opinions that attributed his disability to his work, and he did not report or suggest any connection with his service. The Board finds that he specifically restricted this informal claim to nonservice-connected pension, which he is permitted to do, and that none of the evidence suggested anything other than an employment-based diagnosis of an acquired psychiatric disability, and that there was not an informal service-connection claim for an acquired psychiatric disability with the July 1989 claim. As above, the Board notes that the Veteran's electronic file contains evidence that appears to have been received in November 1989, consisting of testimony from a worker's compensation claim wherein the administrative judge in that case suggested that the Veteran's symptoms originated during service. However, upon closer examination, the testimony is accompanied by a letter written in 1998, and was dated-stamped received in June 1998. In sum, his initial claim for service connection for an acquired psychiatric disability was denied in March 2007, and not appealed. However, the receipt of relevant service department records prompted reconsideration of that initial claim, which was received in February 1997. There are no other claims or communications that can be construed as an informal claim earlier than the February 1997 claim. Accordingly, an effective date of February 6, 1997, for service connection for an acquired psychiatric disability is granted. 2. Effective February 11, 2009, a 50 percent rating, but no higher, for other specified trauma and stressor related disorder is granted. 3. The claim of entitlement to a rating higher than 70 percent for the period starting June 8, 2016, for other specified trauma and stressor related disorder is denied. In this decision, the Board has granted an earlier effective date for the grant of service connection for the Veteran's acquired psychiatric disability back to February 6, 1997. The Veteran appealed both the effective date and the rating assigned to his disability, which was granted from a claim received February 11, 2009. However, the Board is restricted to review of the period starting from date of receipt of the claim up to the present, because the AOJ has not initially adjudicated the rating to be assigned for the period that has been newly service-connected, prior to February 11, 2009, his initially assigned effective date of service connection. The Board only has jurisdiction of the time period that was initially appealed, from February 11, 2009, up to the present. The Veteran's acquired psychiatric disability is rated as 30 percent disabling prior to June 8, 2016, and as 70 percent disabling thereafter, under 38 C.F.R. § 4.130, DC 9410, which pertains to other specified anxiety disorder. A 30 percent evaluation is warranted where there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent evaluation is warranted where there is occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands, impairment of short and long-term memory; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and, difficultly in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and inability to establish and maintain effective relationships. Id. A 100 percent evaluation requires total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and, memory loss for names of close relatives, own occupation, or own name. Id. The symptoms listed above serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating, and are not intended to constitute an exhaustive list. See Mauerhan v. Principi, 16 Vet. App. 436, 442-44 (2002). When evaluating a mental disorder, one must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. See 38 C.F.R. § 4.126 (a). Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. See 38 C.F.R. § 4.126(b). Consistent with the facts, separate evaluations may be assigned for separate periods of time based on the facts foundthat is, the evaluations may be "staged." Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Indeed, the Veteran's rating is currently staged at 30 and 70 percent, as discussed above. As a threshold matter, the Board notes the record shows that the Veteran is diagnosed with both acquired psychiatric disabilities and a personality disorder. Personality disorders, generally, are not subject to service connection. However, here, numerous VA examiners (for example, the September 2019, May 2018, and April 2016 VA examiners) have opined that it would not be possible to differentiate the symptoms and/or level of disability caused by each diagnosis, and to do so would require speculation, as they overlap with one another. Under such circumstances, unless there is clear attribution, doubt is resolved in the Veteran's favor, and all the symptoms are attributed the service-connected disability. Mittleider v. West, 11 Vet. App. 181 (1998). After review of the record, the Board finds the evidence prior to June 8, 2016, meets the criteria for a 50 percent rating starting from the date of receipt of the Veteran's claim. 38 C.F.R. § 3.400(o). The April 2010 VA examiner opined that the Veteran's level of impairment caused reduced reliability and productivity. He noted that the record showed that the Veteran had not worked in over 20 years, and the record showed valid reasons for his inability to sustain regular gainful employment. However, the record also showed the Veteran engaged in activities that allow him to function in non-work settings including calling bingo at a veterans service organization, acting as Commander of another veterans service organization local post, acting as Chairman of his local area's planning commission, and acting as Vice Chairman in his city's rental board of appeals. He also participated in a bowling league, and reported having friends. He and his wife were married since 1976, and he was close with his son. At the November 2014 VA examination, he was in a new relationship after the death of his wife, and reported close relationships with his siblings and their children. As at the April 2010 VA examination, he reported engaging in non-work activities, including running in various local political campaigns, and taking video for a local political party and getting it onto local access television. He was noted to have panic attacks less than weekly. The April 2016 VA examiner noted that the Veteran's symptoms were consistent with those from the previous examination, and that he continued to run for public office, participate in leisure activities, and to be in his previous romantic relationship, which he noted the Veteran found supportive. The Board does not find that a 70 percent rating is warranted for the period prior to June 8, 2016, because the evidence does not show social and occupational impairment with deficiencies in most areas. The evidence does show a deficiency in employment; however, the record does not show deficiencies in most of the relevant areas. In regard to family relations, as noted above, he was married to his first wife for over thirty years, and has been involved with his girlfriend since his wife's death. Both relationships were described by the Veteran as good, and it appears that both his wife and girlfriend provided support to him. His relationship with his son and siblings has been described as close. He also has reported having friends, and he is involved in leisure activities. The record does not show that, during this time period, his symptoms seriously interfered with his ability to relate to or have relationships with his family. The Veteran's judgment was not noted be impaired in the April 2010, November 2014, and April 2016 VA examinations, and the record does not otherwise show or suggest a deficiency in this area. The record does not show deficiency in the area of thinking. The April 2010 VA examiner noted the Veteran had a paucity of ideas and ruminated on the same topics, but not that his thinking was illogical or incoherent. He was not noted to have suicidal thinking, or obsessional thoughts. He was fully oriented. The November 2014 VA examiner noted that, while he did have suspiciousness, he was capable of abstract thought. He was not noted to have incoherent or illogical thinking. The April 2016 VA examiner noted the Veteran's stream of thoughts appeared normal, appropriate, and well-modulated, and that the Veteran denied suicidal or homicidal thoughts. The record show does not show deficiency in mood. The April 2010 VA examiner noted the Veteran reported that his life was miserable, and had depression and anxiety. However, that examiner specifically considered whether the Veteran's acquired psychiatric disability caused deficiencies in most areas, including mood, and opined against it. The Board finds this opinion probative, as there was an in-person examination, and the examiner had obviously reviewed the record. The November 2014 VA examination identified depression as a symptom of his acquired psychiatric disability, but noted that the Veteran's moods were variable, including euthymic. The April 2016 VA examiner noted the Veteran showed appropriate mood and affect, and did not identify depression as a symptom. Thus, the preponderance of the evidence is against a finding that the Veteran's symptomatology is more adequately rated under the 70 percent criteria for symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and inability to establish and maintain effective relationships In sum, for the period prior to June 8, 2016, the Board finds that a higher 50 percent rating is warranted, but the preponderance of the evidence weighs against a rating higher than 50 percent. For the period starting June 8, 2016, the Board does not find that a higher rating is warranted. He is currently rated at 70 percent, and the next higher rating (100 percent) requires total social and occupational impairment. The Board does not find that he has total impairment at any time since February 2009. The September 2019 VA examiner opined that he had impairment with deficiencies in most areas, but not total impairment. The May 2018 VA examiner opined against total impairment. The private examiner that completed the June 2016 disability benefits questionnaire (DBQ), opined that the Veteran did have total impairment; however, the accompanying examination report does not adequately support that finding. She noted the Veteran had nightmares a few times a month, and that he has had flashbacks, but there was no indication of how frequent they were. The Veteran reported feeling emotionally numb and had difficulty trusting people. The examiner noted the Veteran was frequently irritable, and "breaks things instead of hurting people." The following symptoms were noted to cause "severe social, personal, and occupational impairment:" difficulty concentrating and completing tasks in a timely fashion, generalized anxiety with two to three panic attacks per month, flashbacks and intrusive thoughts, insomnia, withdrawn and isolative, and bouts of severe depression. This evidence does not correspond to total impairment. His comment regarding breaking objects rather than hurting people shows some judgment. Further, the examiner did not adequately address his family relationships, which the record shows are reasonably good. The examiner did not mention the Veteran's volunteer or political activities, which conflicts with findings that the Veteran was isolative. To the extent that he has been isolative, this symptom has not resulted in total impairment, as demonstrated by the evidence in the record that shows his involved in his community and with his family. The record shows that he was married for nearly 40 years before his wife died, and that he has had a girlfriend for a number of years since her death. The record shows he has a son and grandchildren, and he reports a "pretty good" relationship with them. He has siblings that he was close to before they died. He has a niece and nephew that lived nearby that are in his life. The record does not show the Veteran has ever been shown to have gross impairment of thought processes or communication, or to have persistent delusions or hallucinations, or grossly inappropriate behavior. He has not been found to be a persistent danger to himself or to others. He has not been shown to have an intermittent inability to perform his activities of daily living, or to be disoriented to time or place. Although he has some memory trouble, it is not of his own name or his close relatives or his occupation. The record does not show total social and occupational impairment at any time. The Board notes that VA treatment from October 2020 shows the Veteran's symptoms were acutely worsened after the death of his dog. The Board considered whether this evidence required an updated VA examination, but finds that is not required. The available evidence is adequate to determine the current state of the disability. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007), See Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). At the treatment appointment, the Veteran reported that he was coping with his loss by participating in "meaningful volunteer work," and noting to that examiner that he was a member of several service organizations and in leadership positions on several of them. He was given diagnostic tests that showed moderately severe depressive symptoms (16 out of 27), and severe trauma related stress symptoms (48 out of 80). His mood was neutral and affect appropriate. His thoughts were logical, cohesive, goal-directed. He did show some tangential thinking but was easily redirected. He was fully oriented, and his insight was grossly intact. This evidence does not suggest a chronic worsening or permanent increase in severity of his symptoms; rather, the increase was identified as acute. It also does not suggest that the acute increase caused total impairment, but instead the evidence of that treatment corresponds with his 70 percent evaluation. Indeed, he remains active in the community, and the diagnostic testing did not show the most severe results. Accordingly, the Board finds that a preponderance of the evidence indicates that a 100 percent rating is not warranted. Rather, continuation of his 70 percent rating for this time-frame is appropriate. REASONS FOR REMAND 4. The claim of entitlement to a TDIU prior to June 8, 2016, is remanded. 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). The Veteran has been awarded a TDIU effective from June 8, 2016. He seeks TDIU for the period prior to that, but does not meet the schedular eligibility requirements. His combined rating prior to June 8, 2016, only amounts to 50 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. Accordingly, as there is at least some evidence that his disability caused unemployability prior to June 2016, this claim must be referred to the Director of the Compensation Service for a decision on whether an extraschedular TDIU is warranted. The matters are REMANDED for the following action: Refer the Veteran's file to the Director of the Compensation Service for a determination on whether an extraschedular TDIU is warranted. Jennifer White 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.