Citation Nr: 21073486 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 13-00 017A DATE: December 8, 2021 ORDER For the period from November 17, 2017, a total disability rating based on individual unemployability (TDIU) is granted. REMANDED The appeal regarding entitlement to TDIU for the period prior to November 17, 2017 is remanded. FINDING OF FACT For the period from November 17, 2017, the Veteran's service-connected low back disability and posttraumatic stress disorder (PTSD) render him unable to obtain and maintain substantially gainful employment. CONCLUSION OF LAW For the period from November 17, 2017, the criteria to establish TDIU are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.1, 4.15, 4.16, 4.18, 4.19, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1990 to August 1991. He had a period of active duty for training (ACDUTRA) from October 1976 to February 1977 and additional service in the Army Reserve. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions by the Agency of Original Jurisdiction (AOJ). A March 2012 rating decision denied service connection for a low back disability. A July 2016 rating decision continued a 50 percent evaluation for PTSD and denied TDIU. The appeal streams were subsequently merged on appeal to the Board. The Board remanded the appeal in August 2017. While the appeal was in remand status, the AOJ increased the evaluation of PTSD to 70 percent, effective November 17, 2017. The Board again remanded the appeal in March 2019. In January 2021, the Board denied higher evaluations for PTSD and remanded the issues of entitlement to service connection for a low back disability and TDIU. In August 2021, the Board again remanded these issues. While the appeal was in remand status, the AOJ granted service connection for degenerative disc disease of the lumbosacral spine and associated radiculopathy of the lower extremities. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. If the schedular rating is less than total, a total disability evaluation may be assigned based on individual unemployability if a Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that he 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). For the period from November 17, 2017, the Veteran is in receipt of a 70 percent evaluation for PTSD and a 20 percent evaluation for degenerative disc disease of the lumbosacral spine. Thus, he meets the schedular criteria under 38 C.F.R. § 4.16 for consideration of TDIU from that date. Upon consideration of the record, the Board concludes that TDIU is warranted for the period from November 17, 2017. The Veteran asserts that his PTSD and back disability render him unemployable. See September 2015 VA Form 21-8940. He reportedly last worked full time in construction in January 2013. See March 2019 VA Form 21-8940. Records obtained from the Social Security Administration (SSA) indicate that he is a high school graduate, that he received no additional eduction or vocational training following service, and that he worked in construction trades from 1982 to 2012. On physical examination in September 2012, the examiner noted that the Veteran had severe degenerative changes in the lumbar spine with severe pain and mobility difficulties. He opined that the Veteran was unable to sit for a full workday, lift or carry objects without restriction, hold a conversation, respond appropriately to questions, or carry out and remember instructions. A psychologist concluded in September 2012 that the Veteran had restrictions in his ability to understand, remember, and carry out instructions related to his PTSD and pain problems. In November 2017, a VA psychological examiner indicated that the Veteran's history or irritability, anger issues, poor judgment, and physical violence with his brother indicated impairment in his interactions with others. She additionally noted that working at a steady pace and completing tasks on time were likely to be difficult for the Veteran because his PTSD symptoms were likely to distract him. She pointed to distractions caused by flashbacks, intrusive memories, and irritability. She indicated that he was unlikely to have the ability to work a 40 hour week or even an eight hour day. She stated that his concentration problems and distraction were likely to interfere with problem solving and handling time pressure and multi-tasking. She noted that his PTSD symptoms were also likely to interfere with his ability to remain emotionally stable during a workday. On VA spine examination in December 2017, the examiner indicated that the Veteran was best suited for light physical duty. She noted that the Veteran had a history of multiple level degenerative disc disease, placing him at risk for injury to the low back associated with heavy lifting. In weighing the lay and medical evidence of record, the Board finds that the evidence is in relative balance as to whether the Veteran is rendered unable to obtain and maintain a substantially gainful occupation as the result of his service-connected PTSD and low back disability for the period from November 17, 2017. As such, entitlement to TDIU is warranted for this period. REASONS FOR REMAND For the period prior to November 17, 2017, the Veteran does not meet the schedular criteria under 38 C.F.R. § 4.16 for consideration of TDIU. However, there is evidence that his service-connected psychiatric disorder and low back disability caused significant occupational impairment during this period. It is the policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation due to service connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). Thus, if a Veteran fails to meet the schedular requirements above, an extraschedular rating is for consideration where the Veteran is nonetheless unemployable due to service connected disability. Id.; see also Fanning v. Brown, 4 Vet. App. 225 (1993). The Board may not grant TDIU on an extraschedular basis in the first instance. Rather, the matter must be referred to the Director of the Compensation Service (Director) for extraschedular consideration. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). The matters are REMANDED for the following action: 1. Refer the issue of entitlement to TDIU for the period prior to November 17, 2017 to the Director of the Compensation Service, for extraschedular consideration under 38 C.F.R. § 4.16(b). 2. Thereafter, readjudicate the issue of entitlement to TDIU prior to November 17, 2017. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Barone, 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.