Citation Nr: 21025068 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 18-03 832 DATE: April 27, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability due to service- connected disability (TDIU), to include on an extraschedular basis, prior to October 30, 2015, is remanded. REASONS FOR REMAND The Veteran served honorably on active duty with the United States Navy from May 1989 to April 1993, to include service in the Southwest Asia theater of operations during the Persian Gulf War. This case was previously before the Board in April 2019, at which time it was remanded for additional development. In April 2020, the Board denied the Veteran’s claim. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). The Court granted a Joint Motion for Remand (JMR) in December 2020, vacating the Board’s April 2020 decision and remanding to the matter to the Board. Entitlement to TDIU on an extraschedular basis for the period prior to October 30, 2015. TDIU has been established from October 30, 2015. However, the Veteran seeks a TDIU, to include on an extraschedular basis, for the period prior to October 30, 2015. He contends that his service-connected posttraumatic stress disorder (PTSD) as well as pain rendered him unemployable. See VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability (April 2016). A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure and follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). When the percentage requirements for a schedular TDIU rating under 38 C.F.R. § 4.16(a) are not met, a TDIU on an extraschedular basis, may nonetheless be granted when a Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability or disabilities. See 38 C.F.R. § 4.16(b). In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court defined the term “unable to secure and follow a substantially gainful occupation” as having two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of the following: the veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Nonetheless, VA's policy is to grant a TDIU in all cases where service-connected disabilities preclude substantially gainful employment, regardless of the percentage ratings. See 38 C.F.R. § 4.16(b). Thus, the Board must determine whether the evidence indicates that the Veteran's service-connected disabilities, alone, preclude substantially gainful employment consistent with his education and occupational experience at any time during the claim period. If so, the Board is prohibited from assigning a TDIU on the basis of 38 C.F.R. § 4.16(b) in the first instance, and must, instead, remand the claim for referral to the Director of Compensation Service for consideration of the veteran's entitlement to an extra-schedular rating. See Bowling v. Principi, 15 Vet. App. 1 (2001). In Ray v. Wilkie, 31 Vet. App. 58, 66 (2019), the Court held that the initial extraschedular referral decision under § 4.16(b) should address whether there is “sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities.” In this case, to ensure that VA has met its duty to assist, the Board finds that remand is required. Specifically, as explained in more detail below, remand is necessary to the develop the record because the record is incomplete with regard to the Veteran’s employment history and the reason for termination of his employment. Such information is critical to determining the Veteran’s entitlement to TDIU. The available evidence shows that the Veteran completed four years of high school and worked in maintenance repair for about six years. See VA 21-8940 (April 2016). The Veteran reported last working in July 2013. The Veteran reported that he was forced to quit his job in maintenance. A PTSD and Unemployability Evaluation, dated March 2016, shows that the Veteran, when working at Deer Park Apartments, had constant pain from his back, was able to remember what he was supposed to do but worked alone and had outbursts of anger. See Medical Treatment Record - Non-Government Facility (April 2016). It was noted that no one wanted to work with him, that he got very angry at co-workers and supervisors, including threatening to “’beat the hell out of them’.” Id. While the record contains an April 2016 cover letter from VA stating that VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits, is being sent to the Veteran, the form with that letter was actuall VA Form 21-4140, Employment Questionnaire. See VA 21-4140 Employment Questionnaire (May 2016). The Veteran completed the required sections, and his latest employer signed the form, where only the name of employer and the dates of employment were provided. Id. Thus, the record is unclear as to the reasons for the Veteran’s termination of employment in July 2013, nor is there any meaningful information on whether his employment was marginal or substantially gainful. The Veteran has not been notified that these responses have not been received. Given that the Veteran has not been provided with correct forms and has not been given the opportunity to fully participate in the development of his claim, the Veteran should be afforded another opportunity to resubmit VA Form 21-4192, and adequate efforts should be made to obtain previous employment verification. The matter is REMANDED for the following action: 1. Send a letter to the Veteran, with a VA Form 21-4192, Request for Employment Information, requesting that the Veteran complete the form and provide any additional information to substantiate a claim of entitlement to TDIU prior to October 30, 2015. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. 2. Conduct any other development deemed necessary and readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. M. Pesin 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.