Citation Nr: 21011108 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 19-20 901 DATE: February 26, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from May 1967 until his honorable discharge in February 1969, to include service in the Republic of Vietnam. The Board thanks the Veteran for his service to our country. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a July 2018 rating decision issued by a Department of Veteran’s Affairs (VA) Regional Office (RO). In January 2021, the Veteran presented sworn testimony during a video-conference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the Veteran’s claims file. Entitlement to a TDIU on an extraschedular basis is remanded. The Veteran contends his service-connected residuals of prostate cancer and posttraumatic stress disorder (PTSD) with secondary persistent depressive disorder and alcohol use disorder have rendered him unable to obtain and retain substantially gainful employment. A TDIU is provided where the combined schedular evaluation for service-connected disabilities is less than total, or 100 percent. 38 C.F.R. § 4.16(a). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded from obtaining or maintaining any gainful employment, by reason of his or her service-connected disabilities. 38 C.F.R. §§ 3.340, 3.41, 4.16. Under 38 C.F.R. § 4.16(a), if there is only one such disability, it must be rated at 60 percent or more to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). The Veteran is service connected for prostate cancer rated as 100 percent disabling from August 24, 2016, to October 31, 2019, and 20 percent disabling from November 1, 2019 to the present, and PTSD with secondary persistent depressive disorder and alcohol use disorder as 50 percent disabling from August 24, 2016. The Court has recognized that a 100 percent rating under the Schedule for Rating Disabilities means that a Veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994). Thus, if VA has found a Veteran to be totally disabled as a result of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that Veteran totally disabled on any other basis. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001). However, a grant of 100 percent disability does not always render the issue of TDIU moot. VA’s duty to maximize a claimant’s benefits includes consideration of whether his disabilities establish entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280 (2008). Specifically, SMC may be warranted if the Veteran has a 100 percent disability rating for a single disability, and VA finds that TDIU is warranted based solely on the disabilities other than the disability that is rated at 100 percent. See Bradley, 22 Vet. App. at 280 (analyzing 38 U.S.C. § 1114(s)). However, that is not applicable in the present case. Notwithstanding the schedular 100 percent rating assigned for the Veteran’s service-connected prostate cancer, the Veteran’s PTSD with secondary persistent depressive disorder and alcohol use disorder does not meet the schedular criteria for a TDIU, as this disability is not ratable at 60 percent or more. See 38 C.F.R. § 4.16(a); see also Bradley, 22 Vet. App. at 294. As such, he does not meet the criteria for consideration for entitlement to a TDIU on a schedular basis because the rating does not satisfy the percentage requirements. Therefore, a TDIU rating is not assignable under 38 C.F.R. § 4.16(a) at any point during the appellate period. Nevertheless, it is the policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of a service-connected disability shall be rated totally disabled, notwithstanding the fact that the assigned schedular ratings do not equal 60 percent for a single disability or 70 percent for a combined disability. 38 C.F.R. § 4.16(b); see also Bowling v. Principi, 15 Vet. App. 1 (2001). Thus, if a Veteran fails to meet the rating enunciated in 38 C.F.R. § 4.16(a), an extraschedular rating should be considered if the Veteran is unemployable due to a service-connected disability. 38 C.F.R. § 4.16(b). In this case, there is no indication the Agency of Original Jurisdiction (AOJ) considered assigning a TDIU on an extraschedular basis, and referral to the Director of the Compensation Service for consideration of a TDIU on an extraschedular basis has not been made. However, the Board finds that such referral is warranted. The Board cannot, in the first instance award an extraschedular TDIU, but must remand the matter to the VA’s Director of the Compensation Service for consideration. Bowling, 15 Vet. App. at 10. In a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, the Veteran reported his service-connected prostate cancer with residuals of voiding dysfunction prevent him from securing or following any substantially gainful occupation. During his January 2021 Board hearing, the Veteran indicated his PTSD impacts his employability as well. The Veteran reported completing high school with four years of college. In April 2018, the Veteran stated he became too disabled to work in September 2016. See April 2018 VA Form 21-4138. The evidence suggests the Veteran’s service-connected disabilities may have rendered him unemployable, specifically to include VA examinations for his service-connected disabilities completed in April 2017, November 2017, and July 2018. Accordingly, the Board will remand the matter for referral to the Director of the Compensation Service. The matters are REMANDED for the following action: 1. Identify and obtain any outstanding VA and private treatment records not already associated with the claims file. 2. Refer the Veteran’s claim for a TDIU to the Director of the Compensation Service for consideration of entitlement to a TDIU on an extraschedular basis. In accordance with 38 C.F.R. § 4.16(b), the AOJ must include a full statement as to the Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors bearing on the issue. The Director of the Compensation Service should issue a memorandum explaining the reasons for this decision and a summary of the evidence considered. Signature on the next page DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Grace Johnk, 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.