Citation Nr: 21007067 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 13-10 604 DATE: February 8, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) prior to April 9, 2014 is remanded. REASONS FOR REMAND The Veteran honorably served in the United States Army from March 1989 to March 1993. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a July 2010 rating decision of the Regional Office (RO) in St. Petersburg, Florida. In July 2016, the Board remanded the Veteran’s claim for a TDIU for additional development. Specifically, the Board asked the Agency of Original Jurisdiction (AOJ) to send the Veteran VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. VA sent the form to the Veteran, and VA received the completed form on November 21, 2016. In November 2019 the Board denied entitlement to a TDIU prior to April 9, 2014. The Veteran appealed the November 2019 decision to the to the United States Court of Appeals for Veterans Claims (Court). The Court, pursuant to a September 2020 joint motion for remand (JMR), vacated the Board’s decision denying entitlement to a TDIU prior to April 9, 2014 and remanded for readjudication consistent with the JMR. The JMR stated the Board failed to discuss which psychiatric symptoms were attributed to the Veteran’s service-connected anxiety disorder, and whether the Veteran had the mental ability to perform the activities required by the occupation at issue considering any symptomatology from the anxiety disorder. Entitlement to a TDIU prior to April 9, 2014 is remanded The Veteran contends that his service-connected disabilities have prevented him from obtaining and maintaining substantially gainful employment prior to April 9, 2014. A TDIU may be assigned where the schedular rating is less than 100 percent if it is found that the Veteran is unable to secure or follow a substantially gainful occupation as a result of 1) a single service-connected disability ratable at 60 percent or more, or 2) as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there are sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16 (a). Prior to April 9, 2014, the Veteran established service connection for anxiety disorder not otherwise specified, rated at 50 percent disabling, effective October 6, 2009; tinnitus, rated at 10 percent disabling, effective October 6, 2009; and scar to right hand, rated at 0 percent disabling, effective October 6, 2009. The Veteran’s combined disability rating was 60 percent from October 6, 2009 to April 9, 2014. Therefore, he has not met the minimum percentage requirements for an award of a TDIU set forth in 38 C.F.R. § 4.16 (a) for that time period. With regard to an extraschedular rating, if a veteran fails to meet the threshold minimum percentage standards enunciated in 38 C.F.R. § 4.16 (a), rating boards should refer to the Director of Compensation Service for extraschedular consideration all cases where the veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16 (b). In his Application for Increased Compensation Based on Unemployability, the Veteran stated he last worked full time in February 2006 as a tattoo artist. He reported having to leave full-time employment because he was paranoid, had trouble sleeping, and had flashbacks. The June 2010 VA psychiatric examination showed the Veteran’s mood was angry, and the Veteran believed that everyone was plotting against him. Sleeping was limited to less than four hours a night. The Veteran exhibited poor impulse with episodes of violence. The Veteran displayed evidence of inappropriate behavior. The examiner diagnosed the Veteran with anxiety disorder not otherwise specified. The Veteran did not meet the criteria for posttraumatic stress disorder (PTSD). VA treatment records show that the Veteran suffered from chronic nightmares, suspiciousness of others, and paranoia. These sentiments are continued throughout the VA treatment records, and the Veteran has received consistent treatment for anxiety and PTSD symptoms. The April 2014 PTSD Disability Benefits Questionnaire shows the Veteran was diagnosed with PTSD, general anxiety disorder, and depression not otherwise specified. The examiner stated it was not possible to differentiate what symptoms are attributable to each diagnosis. When it is not possible to separate the effects of a service-connected condition and a nonservice-connected condition, the provisions of 38 C.F.R. § 3.102 mandates that reasonable doubt on any issue was to be resolved in the Veteran’s favor, and that all signs and symptoms be attributed to the service-connected condition. Mittleider v. West, 11 Vet. App. 181, 182 (1998). As noted, the April 2014 examiner determined that the Veteran’s psychiatric symptoms could not be differentiated between each diagnosis. As such, the Board considers all of his psychiatric symptoms as a whole when evaluating whether the Veteran’s service-connected disabilities render him unable to secure or follow substantially gainful employment. The Board finds that the criteria for referral for consideration under § 4.16 (b) are met for this period. The record suggests that the Veteran’s psychiatric symptoms rendered him unemployable prior to April 9, 2014. The evidence shows evidence of paranoia, poor sleep, poor impulse control with episodes of violence, and inappropriate behavior. The Board finds that the Veteran’s service-connected anxiety disorder not otherwise specified is of sufficient severity to raise a question as to whether he is precluded from obtaining or maintaining gainful employment for the period prior to April 9, 2014, and referral to the Director, Compensation and Pension Service, for consideration under 38 C.F.R. § 4.16 (b) is warranted. The matters are REMANDED for the following action: 1. Refer the Veteran’s claim for a TDIU to the Director of the Compensation Service for extraschedular consideration of entitlement to a TDIU prior to April 9, 2014. 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.