Citation Nr: 21023250 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 14-35 759 DATE: April 20, 2021 ORDER Entitlement to an initial rating greater than 50 percent for major depressive disorder (MDD) with posttraumatic stress disorder (PTSD) before May 03, 2011, is denied. Beginning May 03, 2011, a 70 percent rating, and no higher, for MDD with PTSD is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities from May 03, 2011 to February 25, 2020 (excluding the period from September 15, 2016 to November 30, 2018) is granted. REMANDED Entitlement to a TDIU due to service-connected disabilities before May 03, 2011 is remanded. FINDINGS OF FACT 1. Before May 03, 2011, the probative evidence of record does not reflect that the Veteran’s symptoms from his MDD with PTSD approximated occupational and social impairment. 2. Beginning May 03, 2011, the probative evidence of record reflects that the Veteran’s symptoms from his MDD with PTSD approximated occupational and social impairment. 3. Beginning May 03, 2011, the probative evidence of record does not reflect that the Veteran’s symptoms from his MDD with PTSD approximated total occupational and total social impairment 4. The Veteran’s service-connected disabilities in the aggregate preclude him from securing or following any substantially gainful employment, physical or otherwise from May 03, 2011 to February 25, 2020 (excluding the period from September 15, 2016 to November 30, 2018). CONCLUSIONS OF LAW 1. Before May 03, 2011, the criteria for a 70 percent rating for service-connected MDD with PTSD are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.125, 4.126, 4.130, Diagnostic Code 9411. 2. Beginning May 03, 2011, the criteria for a 70 percent rating for service-connected MDD with PTSD are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.125, 4.126, 4.130, Diagnostic Code 9411. 3. At no time during the entire appeal period since May 03, 2011 the criteria for a 100 percent rating for service-connected MDD with PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.125, 4.126, 4.130, Diagnostic Code 9411. 4. The criteria for entitlement to a TDIU due to service-connected disabilities from May 03, 2011 to February 25, 2020 (excluding the period from September 15, 2016 to November 30, 2018) have been satisfied. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341(a), 4.16, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1968 to March 1970. This matter comes before the Board of Veterans’ Appeals (Board) from a May 2013 rating decision of the VA Regional Office (RO). Regarding the procedural history, the Board notes that a rating decision of October 2011 implemented the Board’s grant of service connection for an acquired psychiatric disorder, to include MDD and PTSD and awarded a 50 percent disability rating, effective October 13, 2005 (the date of claim). In November 2011, the Veteran provided an Application for Increased Rating Based on Unemployability. In February 2012, the Veteran was afforded a Review PTSD disability benefits questionnaire (DBQ). In a rating decision of May 2013, the RO continued the 50 percent rating. In May 2020, the RO increased the rating for MDD with PTSD from 50 percent disabling to 70 percent, effective September 27, 2019. The issues were previously before the Board in August 2018. They were remanded to provide the Veteran with a VA examination to determine the severity of his PTSD and whether he could obtain and maintain substantially gainful employment. The Board finds that the examination of September 2019 substantially complied with the remand directives and is adequate for adjudication purposes. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). As an aside, the Board notes that the Veteran’s service-connected prostate cancer was rated at 100 percent from September 15, 2016 to November 30, 2018. Therefore, this period is not applicable for a TDIU. Additionally, the Board acknowledges the Veteran’s award of special monthly compensation (SMC) under 38 U.S.C. § 1114 (s) for having a disability rated at 100 percent and other disabilities ratable at 60 percent or more, from September 15, 2016 to November 30, 2018 and since February 26, 2020. To grant a TDIU during the periods from September 15, 2016 to November 30, 2018 and since February 26, 2020 would result in the “duplicate counting of disabilities.” Bradley v. Peake, 22 Vet. App. 280, 293 (2008). As a result, the Board has characterized the TDIU issue as reflected above. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist with regards to the issues discussed below on the merits. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to an initial rating in excess of 50 percent prior to September 27, 2019 and in excess of 70 percent thereafter for PTSD Disability ratings are determined by applying the criteria established in VA’s Schedule for Rating Disabilities, based on the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.20. Where there is a question as to which of two evaluations shall be applied under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3. Staged ratings are appropriate for an increased rating claim when the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007) (citing Fenderson v. West, 12 Vet. App. 119, 126 (1999)). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a competent source. Second, the Board must determine if the evidence is credible. Barr v. Nicholson, 21 Vet. App. 303 (2007). Third, the Board must weigh the probative value of the evidence considering the entirety of the record. The Veteran’s MDD with PTSD is rated at 50 percent disabling prior to September 27, 2019 and at 70 percent thereafter under Diagnostic Code 9411. 38 C.F.R. § 4.130. The Veteran’s disability is evaluated under the General Rating Formula for Mental Disorders. Under the General Rating Formula for Mental Disorders, a 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing effective work and social relationships. Id. A 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals that interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130. Id. A 100 percent rating, the maximum available, is assigned for total occupational and social impairment due to such symptoms as gross impairment in thought processes or communication; persistent delusions; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. Symptoms listed in the General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list but rather serve as examples of the type and degree of the symptoms or their effects that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). A veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). Additionally, while symptomatology should be the primary focus when deciding entitlement to a given disability rating, § 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused the requisite occupational and social impairment. Id. The Veteran contends that a higher initial rating than 50 percent is warranted for his acquired psychiatric disorder. In his notice of disagreement (NOD) dated in May 2013, the Veteran reported that his PTSD was serious and “getting worse,” and even with the treatment, he did not have a life. Also, he was attending weekly counseling sessions with a “psychologist one on one,” and he sees a “the psychiatrist once every three months for [his] PTSD.” Treatment notes confirm the Veteran’s psychotherapy sessions. Additionally, treatment records show numerous mental status examinations (MSEs), all noting the Veteran to have good hygiene and good memory. His attitude was cooperative, and he was oriented to time, place, and person. His speech was within normal limits, with a soft voice and no dysarthria. His thought processes were noted as poverty of speech, linear, organized, and logical. His affect was appropriate with his mood. Neither suicidal and/or homicidal ideations were noted. The Veteran consistently denies/denied audio, visual hallucinations, and paranoia. His insight and judgment were noted as fair/fair before July 2015. During a July 21, 2015, MSE and following his insight and judgment were noted as poor/poor. During MSEs conducted in October 2011, November 2015, November 2014, the Veteran’s mood was noted as depressed. MSEs conducted in December 2017 and April 2019 noted his mood to be good, while an MSE conducted in December 2011 noted his mood to be anxious, and MSE conducted in July 2015 noted his mood to be low. In February 2014, his mood was noted as “not too good.” In April 2014, his mood was euphoric and pleasant, and the Veteran reported that he had been doing better. During a clinical session dated in December 2010, the Veteran complained of depression for 20 years, nightmares, flashbacks of being in Vietnam, mood swings, and racing thoughts “all the time.” The Veteran reported sleeping 1-2 hours per night. He denied audio/visual hallucinations, paranoia, suicidal/homicidal ideas, plans, intentions. He, however, confirmed access to firearms (2 pistols and a shotgun). He reported that he was willing to give the guns to his wife if he had thoughts of hurting himself in the future (or someone else). Treatment notes dated in May 2011 and August 2011, the clinician noted that “[g]iven the Veteran’ presentation at the time of this assessment and considering the above-noted risk and protective factors, in my clinical judgment the Veteran’s current risk potential for suicidal behavior is: LOW RISK. [Veteran] judged NOT to be at significant risk for self-harm.” During a clinical session dated in October 2011, the Veteran complained of having had nightmares once every two weeks “about what happened while he was over there.” He also reported that the medication helped his little bit, but he still isolates himself from people and cries “without reason.” He reported not wanting to go to PTSD treatment because it will be “more reminders to him.” The clinician noted that he reported no other psychiatric symptoms and denied suicidal/homicidal intentions. Throughout the appeal period, numerous Suicide Risk Screenings and Suicide Risk Assessments were conducted, and most were negative for feelings of hopelessness, thoughts, intent, and plan for the intent of suicide. However, during assessments on May 03, 2011, August 02, 2011, October 03, 2011, the Veteran reported current risk factors of hopeless and thoughts about taking his life, absent intent, and a specific plan. The clinicians noted that the Veteran’s other current risk factors included his mental health diagnoses, sleep disturbances (unable to sleep or sleeping all the time), impulsivity/poor self-control/anxiety/agitation. The Suicide Risk Assessment noted current psychosocial stressors/recent losses included his home and family life (withdrawing from friends, family and society, and his health. The protective factors included positive social support and a significant sense of responsibility to family. Nevertheless, the clinicians deemed the Veteran’s current risk potential for suicidal behavior as “low risk.” Throughout the appeal period, the Veteran agreed to contact the MHC clinic or call 911 should he exhibit any thoughts of harming himself or others, and the National Suicide Hotline toll-free number was continuously given to the Veteran. In February 2012, he underwent a VA PTSD DBQ. He reported having a positive relationship with his wife of 40 years, two sons, and two grandsons. He also reported that he mostly stayed to himself and has no close peers. He spent most of his day outside, alone in his garage, if the weather was nice. If the weather was not nice, he stayed inside the house, where felt like the “walls close[d] in” on him and listened to jazz music or watch movies that his wife played for him. The Veteran reported that he tried to stay away from watching television. He also reported that he attends church every Sunday and Bible study every Wednesday night. He knows the people at his church but, he does not have close friendships where he visits “these people.” The Veteran reported that he spent 27 years working as a welder for one company. He had to quit this position in 2008, three years before his scheduled retirement, because he did not get along with his boss and he could not take it anymore. “It got to the point [where he and his boss] did not agree on things.” He reported that he always tried to walk away from arguments but could not continue work on that job because sooner or later, there would be a physical altercation if he did not choose to leave. He had a positive relationship with his co-workers, but he had problems with the new boss, who had been there for about eight months. The Veteran reported that he did not think he would be able to work again because of his condition. The examiner diagnosed chronic PTSD and depression not otherwise specified (NOS), possibly secondary to PTSD. Regarding the level of occupational and social impairment, the examiner determined that efficiency and intermittent periods of inability to perform occupational tasks although generally functioning satisfactorily with normal routine behavior, self-care, and conversation. The symptoms of his disability included depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, flattened affect, difficulty in adapting to stressful circumstances, difficulty in establishing and maintaining effective work and social relationships, and inability to establish and maintain effective relationships. The examiner noted that the Veteran could manage his financial affairs. The Veteran was afforded a second PTSD DBQ in September 2019. The Veteran reported that he remained married to his wife and still isolate due to irritability. The activities of daily living (ADLs) were performed regularly. However, he lost interest in past hobbies, such as working on antique cars. The Veteran also reported that his depression had progressed, where he was unable to focus and attend to information, as he did in the past. The examiner diagnosed PTSD and unspecified depressive disorder. He determined that the Veteran’s level of occupational and social impairment was best summarized by occupational and social impairment with reduced reliability and productivity. The following symptoms applied to his PTSD: depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, flattened affect, impaired abstract thinking, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, impaired impulse control, such as unprovoked irritability with periods of violence, and neglect of personal appearance and hygiene. The examiner found the Veteran capable of managing his financial affairs. The examiner remarked that the Veteran was predicted to have reduced reliability and productivity in workplace settings where full-time persistence was needed, as the Veteran was experiencing decreased motivation and throughput. The examiner further explained the following: However, [the Veteran] should complete basic, repetitive tasks in controlled settings with limited social interaction if given appropriate periods of rest. The problems with poor focus, anhedonia, anergia, and motivation, along with social anxiety/irritability, [we]re likely to cause decreased overall performance if accommodations [we]re not presented… [t]the impairment rating was based on the impact of a mood disorder on occupational and social functioning and [did] not include limitations due to medical disorder. After a review of the evidence presented above, the Board finds that the frequency, severity, and duration of the Veteran’s MDD with PTSD symptoms reported or shown are suggestive of occupational and social impairment with deficiencies in most areas, the level of impairment contemplated by a 70 percent rating, beginning May 03, 2011. Before May 03, 2011, the Veteran’s symptoms from his MDD with PTSD included nightmares, flashbacks of being in Vietnam, depression, isolation, sleeplessness, mood swings, and racing thoughts “all the time,” tearful all the time, fair insight and judgment, with denial of audio/visual hallucinations, paranoia, suicidal/homicidal ideas, plans, intentions. As there is no finding or suicidal ideation, obsessional rituals, speech intermittently illogical, obscure, or irrelevant, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, impaired impulse control, spatial disorientation, neglect of personal appearance and hygiene, difficulty in adapting to stressful circumstances, and the inability to establish and maintain effective relationships, a 70 percent is not approximated during this period. During three separate Suicide Risk Screenings and Suicide Risk Assessments on May 03, 2011, August 02, 2011, October 03, 2011, the Veteran reported current risk factors of feeling hopeless and thoughts about taking his life, absent intent and a specific plan. Although the clinicians noted that the Veteran’s other “current risk factors,” included his mental health diagnoses, sleep disturbances, impulsivity/poor self-control/anxiety/agitation, his health, and withdrawal from friends, family, and society, they nevertheless deemed him a “low risk” for suicidal behavior, based on his positive social support, and significant sense of responsibility to family. Before the above three dated admissions of feeling hopeless and having thoughts about taking his life, no other intimation is of record before May 03, 2011, and after October 03, 2011. Therefore, the Board finds that the Veteran’s frequency, severity, and duration of his MDD with PTSD symptoms are contemplated by the 70 percent criteria, beginning May 03, 2011. Thus, a 70 percent disability rating is warranted, beginning May 03, 2011. The evidence of record during this period shows that the Veteran’s PTSD is not more closely described by both total occupational and total social impairment. The risk of self-harm is contemplated by the 100 percent criteria, which addresses whether one is a persistent danger to himself or others. Bankhead v. Shulkin, 29 Vet. App. 10 (2017). Here, the cumulative evidence of record does not show severity enough to cause both total occupational and total social impairment. Further, no VA clinician, examiner, nor private clinician has found the Veteran to be a persistent danger of hurting himself or others. The numerous MSEs conducted during this period noted the Veteran’s continuous denial of current suicidal/homicidal intent or plan. While the numerous suicide risk screenings noted the Risk Factors, including his mental health diagnoses, sleep disturbances, impulsivity/poor self-control/anxiety/agitation, withdrawing from friends, family and society, and health, they also noted his positive social support and significant sense of responsibility to family. During the appeal period, the Veteran reported continued to be married to his wife for almost 50 years, and with whom he has a positive relationship. He also reported positive relationships with his two grown sons and two grandsons. He has also been continuously found to be able to manage his financial affairs, throughout the appeal period. Although he has no close peer relationships, he attends church every Sunday and Bible study every Wednesday night and knows people at his church even though he does not “visit these people.” The Board acknowledges his isolation and the recent loss of lost interest in past hobbies, such as working on antique cars, and his inability to focus and attend to information as he did in the past. However, neither the VA examiners nor the clinical record shows him to have had gross impairment in thought processes or communication, disorientation to time or place, and memory loss for names of close relatives, own occupation, or own name. Moreover, the evidence does not reflect findings of persistent delusions, grossly inappropriate behavior, persistent danger of hurting self or others, and intermittent ability to perform activities of daily living. Thus, the Board finds that neither total nor social impairment is approximated during this appeal period. “Total” is defined as “whole, not divided; full; complete” and “utter, absolute.” Black’s Law Dictionary, 1498 (7th ed. 1999). As the most probative evidence of record does not show total social impairment, the 100 percent rating is not warranted. Given the frequency, nature, and duration of the Veteran’s symptoms, the Board finds that they do not result in total occupational and total social impairment for the period on appeal. They do not more closely approximate the types of symptoms contemplated by the 100 percent rating, and therefore, a 100 percent rating is not warranted. Vazquez-Claudio, 713 F.3d at 114 (holding that a veteran “may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration”). In sum, the Board finds that the Veteran’s symptoms from his PTSD are most closely described by a 70 percent rating beginning May 03, 2011. The probative evidence of record does not show that the particular symptoms associated with the higher percentage or others of similar severity, frequency, and duration result in total occupational and total social impairment. Thus, a 100 percent rating is not approximated. The Board notes that the Veteran’s representative has argued that beginning September 24, 2019, a 100 percent is warranted for MDD with PTSD. Nonetheless, as the Board has herein granted a 70 percent from May 03, 2011, the appeal is from said date, and the Board has determined that therefrom a 100 percent is not met or approximated. 2. Entitlement to a TDIU from May 03, 2011 to February 25, 2020 (excluding the period from September 15, 2016 to November 30, 2018) 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). Here, with the grant of 70 percent for PTSD, the schedular criteria are met, beginning May 03, 2011. In addition to the 70 percent granted herein for PTSD, the Veteran is service-connected for multiple myeloma at a noncompensable rate from February 19, 2019, and 100 percent from February 26, 2020; major depressive disorder/PTSD at 50 percent from October 13, 2005; prostate cancer at 60 percent from December 01, 2018; diabetic nephropathy at 30 percent from September 18, 2018; right upper extremity peripheral neuropathy at 30 from September 18, 2018; diabetes mellitus, at 20 percent from May 03, 2016; left upper extremity peripheral neuropathy at 20 from September 18, 2018; right lower extremity peripheral neuropathy at 10 percent from September 18, 2018; left lower extremity neuropathy 10 percent from September 18, 2018; hearing loss, left ear at 10 percent from September 18, 2018; and erectile dysfunction at a noncompensable rate from October 18, 2016. The Veteran submitted VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability) in November 2011 and attributed his lack of gainful employment to his PTSD and depression. He indicated that he had been undergoing doctor’s care. The date he became too disabled to work, and the date she last worked full-time was September 02, 2008. The record shows that the Veteran worked as a welder for a railroad company for 27 years from June 1978 to September 02, 2008. Additionally, of the record is his reports in the February 2012 VA examination that he had to quit his welding position in 2008, three years before his scheduled retirement, because he could not take it anymore, and felt that if he did not leave, he would be involved in a physical altercation. Although he had a positive relationship with his co-workers, he had problems with the new boss. The Veteran reported that he did not think he would be able to work again because of his condition. When asked about sedentary employment, he reported that if he could get along with the other people, he would be interested in working again. He reported that his legs were weak, which would make it difficult for him to work again, for his balance was off. In September 2019 VA examination, he reported concerns about working due to his depression and physical issues related to his bilateral leg pain and poor balance. As indicated above, the Veteran is service connected for peripheral neuropathy of the bilateral lower extremity (from September 18, 2018). During this period, between May 03, 2011 and February 25, 2020 (excluding the period from September 15, 2016 to November 30, 2018), the Veteran is service-connected for prostate cancer, diabetic nephropathy, right upper extremity peripheral neuropathy, diabetes mellitus, left upper extremity peripheral neuropathy, right lower extremity peripheral neuropathy, left lower extremity neuropathy, hearing loss, left ear, and erectile dysfunction. While no examiner has addressed the combined effect of said disabilities on the Veteran’s ability to procure and secure substantially gainful employment, the Board finds that the Veteran’s service-connected disabilities in the aggregate preclude him from securing or following any substantially gainful employment, physical or otherwise, beginning May 03, 2011 (excluding the period from September 15, 2016 to November 30, 2018). 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 disabilities, the competent and credible lay assertions of unemployability due to limitations caused by the service-connected disabilities, and the cumulative objective evidence of record, the Board finds that collectively, 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 from May 03, 2011 to February 25, 2020 (excluding the period from September 15, 2016 to November 30, 2018) is warranted. 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 due to service-connected disabilities before May 03, 2011 Before May 03, 2011, the Veteran’s total rating was 50 percent, and his sole disability was PTSD, for which he attributed his lack of gainful employment. 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 presented above indicates that the Veteran may have been unable to secure and follow substantially gainful employment before May 03, 2011, due to his service-connected disability. As such, a referral to the Director of the Compensation Service for consideration of an extraschedular TDIU is warranted under 38 C.F.R. § 4.16(b). Accordingly, matter is REMANDED for the following actions: 1. Refer the claim to the Director of the Compensation Service to consider the issue of entitlement to TDIU on an extraschedular basis before May 03, 2011 under 38 C.F.R. § 4.16 (b). 2. Then, readjudicate the claim. If the decision is adverse to the Veteran, issue a supplemental statement of the case, and allow the appropriate time for response. Then, return the case to the Board. T. Blake Carter Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Stevens, 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.