Citation Nr: 21071813 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 15-17 670 DATE: December 1, 2021 REMANDED Entitlement to a disability rating greater than 50 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to August 21, 2014, on an extraschedular basis is remanded. REASONS FOR REMAND The Veteran had active service from July 1966 to May 1970, including in Vietnam. This appeal has a long procedural history. It comes before the Board of Veterans' Appeals (Board) on appeal from a January 2017 rating decision which denied both of the currently appealed claims. In September 2019, the Board denied, in pertinent part, both of the Veteran's currently appealed claims. The Veteran, through his attorney, appealed the Board's denial of these claims to the United States Court of Appeals for Veterans Claims (Court). The Court vacated and remanded the September 2019 Board decision to the extent that it denied both of the currently appealed claims and dismissed the balance of the Veteran's appeal in an April 2021 memorandum decision. Additional development is required before the underlying claims can be adjudicated on the merits. Having reviewed the record evidence, the Board finds that the issues on appeal should be characterized as stated above. 1. Entitlement to a disability rating greater than 50 percent for PTSD is remanded. The Veteran essentially contends that his service-connected PTSD is more disabling than currently evaluated. The Board acknowledges that the Court criticized certain aspects of the September 2019 decision which denied the Veteran's increased rating claim for PTSD. The Board also notes that the most recent VA examination for PTSD occurred in October 2016, more than 5 years ago. The Court has held that when a Veteran alleges that his service-connected disability has worsened since he was examined previously, a new examination may be required to evaluate the current degree of impairment. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); but see Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007) (finding "mere passage of time" does not render old examination inadequate). Given the Veteran's contentions and given the length of time which has elapsed since his most recent VA examination for PTSD in October 2016, the Board finds that, on remand, he should be scheduled for an updated VA examination to determine the current nature and severity of his service-connected PTSD. 2. Entitlement to a TDIU prior to August 21, 2014, on an extraschedular basis is remanded. The Veteran finally contends that he is entitled to a TDIU prior to August 21, 2014. The Board notes initially that, prior to August 21, 2014, service connection only was in effect for coronary artery disease, evaluated as 60 percent disabling effective June 1, 2014, and for a left temple scar, evaluated as 10 percent disabling effective May 23, 1970. Thus, he does not meet the schedular criteria for a TDIU prior to August 21, 2014. See 38 C.F.R. § 4.16(a) (2020). The Board also notes that it is prohibited from adjudicating extraschedular TDIU claims in the first instance without referring them to the Director, Compensation Service (Director), for a decision as to a Veteran's entitlement to extraschedular TDIU. To date, the Veteran's extraschedular TDIU claim has not been referred to the Director for a decision. The Board observes here that the Court criticized the September 2019 decision for relying on insufficient evidence to adjudicate this claim. Obtaining a decision from the Director on this claim may satisfy the Court's criticisms. Thus, the Board finds that, on remand, the Veteran's claim of entitlement to a TDIU prior to August 21, 2014, on an extraschedular basis, should be referred to the Director, Compensation Service, for a decision. The matters are REMANDED for the following action: 1. Conduct any appropriate development to obtain the Veteran's updated treatment records. 2. Schedule the Veteran for updated examination to determine the current nature and severity of his service-connected PTSD. 3. Forward the claims file and a copy of this REMAND to the Director, Compensation Service (Director), for a decision on the Veteran's claim of entitlement to a TDIU prior to August 21, 2014, on an extraschedular basis. The Director specifically is asked to determine whether the Veteran's statement on a VA Form 21-4138 dated on January 19, 2012, and date-stamped as received by VA on February 1, 2012, that he is unable to work due to balance problems indicates that he is entitled to a TDIU on an extraschedular basis as of that date. (Continued on the next page) A copy of any request(s) sent to the Director and the Director's decision on this claim should be associated with the claims file. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael T. Osborne, 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.