Citation Nr: 21015989 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 18-19 117A DATE: March 18, 2021 ORDER Beginning December 14, 2016, entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. REMANDED Entitlement to a TDIU before December 14, 2016 is remanded. FINDING OF FACT Beginning December 14, 2016, the Veteran’s service-connected disabilities preclude him from securing or following substantially gainful employment. CONCLUSION OF LAW Beginning December 14, 2016, the criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 3.102, 3.340, 3.341(a), 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1963 to May 1968, with additional service with the Air National Guard from June 1969 to March 1994. This matter comes before the Board of Veteran’s Appeals (Board) from a May 2015 rating decision of the Department of Veteran Affairs (VA), Regional Office (RO). The May 2015 rating decision granted service connection for PTSD at 30 percent disabling, effective January 24, 2013. In November 2017, the RO increased the Veteran’s rating to 70 percent, effective December 14, 2016. The Board has jurisdiction to consider entitlement to a TDIU as part of the underlying increased rating claim. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). A TDIU claim is considered reasonably raised when a veteran submits medical evidence of a disability, makes a claim for the highest rating possible, and submits evidence of service-connected unemployability. Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). The issue was previously before the Board in August 2020 and remand for the RO to provide the Veteran with a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, and request that it is completed and returned. The record shows that in August 2020, the RO forwarded correspondence to the Veteran with the request. However, the Veteran did not return the form. Thus, the Board finds that there has been substantial compliance. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). A TDIU is warranted beginning December 14, 2016. The Veteran’s representative argues that the Veteran is warranted a TDIU since he meets the schedular requirements and is unable to secure or maintain substantially gainful employment due in part to his PTSD. Total disability exists when there is any impairment, which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (a)(1). A total disability rating for compensation purposes may be assigned based on individual unemployability: that is, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one service-connected disability, it must be rated 60 percent or more; if there are two or more service-connected disabilities, at least one disability must be rated 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). Individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran’s advancing age. 38 C.F.R. §§ 3.341 (a), 4.19 (2018); Van Hoose v. Brown, 4 Vet. App. 361 (1993). When the Board conducts a TDIU analysis, it must consider the Veteran’s education, training, and work history. Pederson v. McDonald, 27 Vet. App. 276 (2015). The Veteran is service connected for hypertension and hearing loss, at a noncompensable rate, effective January 24, 2013; tinnitus at 10 percent disabling, effective January 24, 2013; and posttraumatic stress disorder (PTSD) at 40 percent disabling, effective January 24, 2013, and 70 percent disabling from December 14, 2016. The total rating as of January 24, 2013, was 10 percent and 70 percent as of December 14, 2016. Therefore, beginning December 14, 2016, the criteria for consideration of a schedular TDIU are met. The evidence of record shows that the Veteran has an Associate degree, as well as a paramedic certificate. He worked as a warehouse worker, part-time EMT on ambulance routes, and a firefighter for 29 years, retiring in 2010. Treatment records dated in August 2017 note that the Veteran continued to work as “an EMT until two years ago.” Treatment notes also note that the Veteran worked part-time as a volunteer with VFW as a treasurer and, most recently, a chief officer. Additionally, the record shows that during the Veteran’s VA auditory examination, it was reported that his hearing loss disability impacted ordinary conditions of daily life, including the ability to work because of his inability to hear background noises, especially when he cannot see the speaker’s face. A tinnitus examination revealed that his conditions of daily life were impacted because his ability to hear and understand is disturbed, resulting in diminished productivity and impaired interpersonal interactions. In a rating decision of November 2017, the RO found the Veteran’s symptoms as reflected in the November 2017 Initial PTSD examination more suggestive of occupational and social impairment with deficiencies in most areas, the level of impairment contemplated by the 70 percent rating during the period beginning December 14, 2016. The Veteran has provided Social Security Administration (SSA) documents showing that he receives disability payments, for which he became entitled in May 2010. Based on the evidence presented, the Board finds that a TDIU is warranted. The evidence of record indicates that the Veteran’s hypertension, hearing loss, tinnitus, and PTSD, in the aggregate, likely precludes him from securing and following any substantially gainful employment. The ultimate responsibility for a TDIU determination is a factual rather than a medical question and is an adjudicative determination made by the Board or the AOJ. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Reviewing the totality of the evidence, however, including the Veteran’s current medical findings detailing the severity of his service-connected PTSD, the competent and credible lay assertions of unemployability due to limitations caused by said disabilities. The cumulative objective evidence of record, the Board finds that the Veteran’s service-connected disabilities, coupled with his educational/training background and employment history, likely precludes him from securing and following any substantially gainful employment. Accordingly, resolving all doubt in the Veteran’s favor, the Board finds that entitlement to TDIU is warranted beginning December 14, 2016, the day that the schedular criteria are met. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to a TDIU, before December 14, 2016 is remanded. When the threshold criteria for consideration of a schedular TDIU are not met, the issue of entitlement to a TDIU may be submitted to the Director of the Compensation Service for extraschedular consideration where the Veteran is unable to secure or follow a substantially gainful occupation because of service-connected disabilities. 38 C.F.R. § 4.16 (b); Fanning v. Brown, 4 Vet. App. 22 (1993). The Board cannot assign an extraschedular rating in the first instance. Bagwell v. Brown, 9 Vet. App. 337 (1996). Here, the evidence as presented above, indicates that the Veteran may have been unable to secure and follow substantially gainful employment before December 14, 2016. As such, a referral to the Director of the Compensation Service for consideration of an extraschedular TDIU is warranted. Accordingly, the case is REMANDED for the following action: 1. Refer the claim to the Director of the Compensation Service to consider the issue of entitlement to TDIU on an extraschedular basis before December 14, 2016, under 38 C.F.R. § 4.16(b). (Continued on the next page)   2. If the benefit sought on appeal remains denied, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Stevens, 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.