Citation Nr: 21072178 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 17-43 148 DATE: December 2, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). is granted from August 15, 2017. REMANDED Entitlement to a TDIU for the period prior to August 15, 2017 is remanded. FINDING OF FACT The Veteran is unable to maintain substantially gainful employment by reason of his service-connected disabilities from August 15, 2017. CONCLUSION OF LAW The criteria for entitlement to a TDIU are met from August 15, 2017. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.15, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran honorably served from June 1959 to May 1962, January 1967 to August 1973, and August 1980 to December 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2015 rating decision of the Regional Office (RO). In December 2017, the Veteran testified before the undersigned Veterans Law Judge at a Central Office hearing; a transcript is of record. In June 2013, the Board issued a decision granting a disability rating of 70 percent for the Veteran's service-connected PTSD from August 15, 2017. The Veteran appealed to the Court of Appeals for Veterans Claims (Court). By order dated in September 2021, in accordance with a Joint Motion for Partial Remand (JMPR), the Court noted the Veteran did not challenge the Board's grant of a 70 percent disability rating for PTSD from August 15, 2017 but remanded for the Board to consider the issue of entitlement to a TDIU pursuant to Rice v. Shinseki, 22 Vet. App. 447, 453 (2009) (holding that a TDIU is an element of an appeal of an initial rating). Entitlement to a TDIU from August 15, 2017 is granted VA will grant a TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from securing or following "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that he or she has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16 (a). The Veteran is in receipt of a 70 percent disability rating for PTSD from August 15, 2017. Accordingly, since August 15, 2017, he has met the minimum percentage requirements for a TDIU. 38 C.F.R. § 4.16 (a). The question is whether the claimant is capable of performing the physical and mental acts required by employment, not whether he or she can actually find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16 (a)). The Veteran reports that he has been unable to work due to his service-connected PTSD; and thus, he asserts that he is entitled to a TDIU. In his July 2017 VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, he indicated that he last worked in 1998 as an instructor at a university. The Veteran's educational background includes four years of college with no additional training or education. In an August 2017 VA Form 9, the Veteran reported numerous anxiety and panic attacks daily. He reported losing joy most of the time and finds himself in states of depression wondering why he should continue living. He reported getting upset without reason and choosing to be alone because he doesn't trust anyone. The Veteran reported major problems with concentration, focus, short-and long-term memory. He reported being impulsive. During his December 2017 Board hearing, the Veteran testified he suffers from daily panic attacks. The Veteran does some work in a field raising crops to provide food to the elderly and disadvantaged. He does not receive money for this activity, rather, it is part of his therapy program. In a March 2020 statement, the Veteran reported having major difficulty in adapting to work or work-like settings. He reported having suicidal ideations for years. He reported disturbances of motivation and mood, difficulty establishing and maintaining effective relationships, and chronic sleep impairment. He reiterated that he experiences daily and nightly panic attacks, including following nightmares. The Veteran reported being in a depressed mood, and that his entire life is a waste. At a March 2021 PTSD examination the Veteran reported anxiety and suspiciousness affecting his relationships. He reported poor sleep and lack of motivation for social activities and relationships. The examiner stated the Veteran's PTSD causes the Veteran to have significant difficulty functioning around other people, has difficulty functioning as a team member, and feels uncomfortable around others. The Board notes that the Veteran's volunteer work indicates that he is capable of performing the physical and mental acts required for at least part-time volunteering in a low stress and solitary environment. However, affording the Veteran the benefit of the doubt, the most probative evidence of record establishes that the Veteran is unable to secure or follow a substantially gainful occupation by reason of his service-connected PTSD. The benefit sought on appeal is granted from August 15, 2017. REASONS FOR REMAND The record shows the Veteran's PTSD may have precluded him from obtaining and maintaining substantially gainful employment prior to August 15, 2017. For the period prior to August 15, 2017, as the Veteran does not meet the applicable percentage standards, the Board finds that referral of the issue for extraschedular consideration is warranted. See 38 C.F.R. § 4.16 (b). Accordingly, the Board will remand the matter for referral to the appropriate agency. (Continued on the next page) The matter is REMANDED for the following action: 1. Refer the matter of entitlement to a TDIU on an extraschedular basis to the Director, Compensation Service for a determination as to whether the Veteran is entitled to assignment of a TDIU under the provisions of 38 C.F.R. § 4.16 (b). R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. St. Laurent, Associate 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.