Citation Nr: 21072091
Decision Date: 12/02/21	Archive Date: 12/02/21

DOCKET NO. 20-03 205
DATE: December 2, 2021

REMANDED

Entitlement to a total disability rating due to individual unemployability (TDIU) prior to June 1, 2018 is remanded.

REASONS FOR REMAND

The Veteran served honorably in the Army from February 1966 to January 1969.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2017 rating decision that adjudicated the issue of the rating for a psychiatric disability.  The issue of entitlement to a TDIU was part and parcel of the Veteran's claim for an increased rating for a psychiatric disability, which was received on June 4, 2016.  See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).

A December 2020 rating decision awarded the Veteran a TDIU with an effective date of August 4, 2020 which does not cover the entire period on appeal.

The matter was last before the Board in August 2021.  In a September 2021 rating decision, the Veteran was awarded a new effective date of June 1, 2018 for the assigment of his TDIU.  The grant still does not cover the entire period on appeal. 

 

Entitlement to a total disability rating due a TDIU prior to June 1, 2018 is remanded.

All veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled.  Rating boards are to submit to the Director of the Compensation Service for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but where, as here, they fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a) for all or a portion of the period(s) at issue.  38 C.F.R. § 4.16(b) (2021). 

From June 4, 2016 to June 1, 2018, the Veteran is only service-connected for posttraumatic stress disorder (PTSD), rated as 50 percent disabling.  Thus, the Veteran does not meet the schedular requirements for a TDIU during this period.

Here, the evidence reflects that referral for consideration of an extraschedular TDIU is warranted.  In January 2020, a private examiner opined that due to the Veteran's PTSD, he was not able to sustain gainful employment since January 17, 2018.  The Board finds that there is sufficient evidence to substantiate a reasonable possibility that the Veteran is unemployable because of his service-connected disability during the appellate period and prior to the current effective date.  See Ray v. Wilkie, 31 Vet. App. 58, 66 (2019), Snider v. McDonough, No. 19-6707 (2021).   

In light of the foregoing, this case warrants further development and referral pursuant to 38 C.F.R. § 4.16(b).

The matter is REMANDED for the following action:

1. After completing any additional development deemed necessary, refer the Veteran's case to the Director of the Compensation Service for consideration of entitlement to a TDIU pursuant to 38 C.F.R. § 4.16(b).

2. If upon completion of the above the issue remains denied, the appeal should be returned to the Board after compliance with appellate procedures. 

 

 

E. I. VELEZ

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	R. Gandhi, 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.