Citation Nr: 21026055 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 11-07 167 DATE: April 29, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis is granted from July 26, 2010 to August 9, 2010. FINDING OF FACT From July 26, 2010 to August 9, 2010, the Veteran’s posttraumatic stress disorder (PTSD), bilateral hearing loss, and tinnitus have rendered him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for an extraschedular TDIU are met from July 26, 2010 to August 9, 2010. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1965 to August 1967, including service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) from a February 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2014, the Veteran testified at a hearing before the undersigned Veterans Law Judge. However, due to a technological malfunction, a hearing transcript was not produced, and the Veteran declined to appear at another hearing. The Board remanded the claim for further development in October 2015. In June 2018, the Board denied entitlement to a TDIU. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In an October 2019 memorandum decision, the Court vacated the June 2018 Board decision, in part, and remanded the claim to the Board. The Board remanded the claim for further development in June 2020 and November 2020. 1. Entitlement to a TDIU on an extraschedular basis is granted from July 26, 2010 to August 9, 2010. As the prior Board decision awarded entitlement to a TDIU on a schedular basis, only the period from July 26, 2010 to August 9, 2010 on an extraschedular basis is for consideration. A total disability rating may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16. Here, the Veteran does not meet the schedular criteria for a TDIU for the appeal period beginning July 26, 2010 to August 9, 2010, as service connection was in effect for PTSD, bilateral hearing loss, tinnitus, asthma, and hypertension for a combined rating of 40 percent from April 17, 2006 and 60 percent from September 10, 2008. 38 C.F.R. § 4.16(a). Even when the criteria under 38 C.F.R. § 4.16(a) are not met, such as here, entitlement to individual unemployability benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular TDIU in the first instance without initially referring the claim to VA’s Director of Compensation Service. Bowling v. Principi, 15 Vet. App. 1 (2001). Such action was accomplished pursuant to the Board’s most recent remand. In January 2021, VA’s Director of Compensation Service determined that the Veteran was not entitled to TDIU on an extraschedular basis. As the Director has considered the issue in the first instance, the Board may now evaluate the claim. Wages v. McDonald, 27 Vet. App. 233 (2015). The determination as to whether a veteran can secure or follow a substantially gainful occupation includes an economic component and a noneconomic component. The economic component means that a veteran must not receive income from employment outside of a protected environment that exceeds the poverty threshold for one person. The noneconomic component requires consideration of a veteran’s ability to secure or follow substantially gainful employment, including factors such as the veteran’s history of education, skill, and training, as well as his or her ability to perform the physical and mental activities required by the occupation in question. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The evidence reflects that the Veteran has been unemployed since March 25, 2007 and that he does not receive income from employment exceeding the federal poverty threshold. See September 2010 VA Form 21-4192; See July 2010 and October 2012 VA Forms 21-8940. This in accord with the economic component of entitlement to an extraschedular TDIU. Regarding the noneconomic component, the Veteran reported completing two years of college, as well as education/training as a tech. See July 2010 and October 2012 VA Forms 21-8940. The evidence of record also indicates that the Veteran is not able to follow a substantially gainful occupation as a result of his service-connected PTSD, bilateral hearing loss, and tinnitus. In July 2010, a vocational rehabilitation counselor determined that the Veteran had a serious employment handicap due to his service-connected disabilities and stated that it was not reasonably feasible for the Veteran to obtain employment. Similarly, in an August 2010 vocational rehabilitation counseling record, the examiner determined that the Veteran had a serious employment handicap, finding that his PTSD resulted in symptoms including fatigue, poor quality of sleep, poor anger management, significant social isolation, difficulty interacting with others, and severe anxiety in crowds, and inability to complete tasks. The examiner also noted that the Veteran was unable to hear low-level communication, had difficulty distinguishing sounds, and had difficulty communicating with background noise as a result of his hearing loss and tinnitus. In denying an extraschedular TDIU in January 2021, VA’s Director of Compensation Service found that the overall evidence did not show any of the Veteran’s service-connected disabilities or a combination of the effects of such disabilities prevented employment. However, as noted, the record indicates that the Veteran has considerable difficulty engaging in employment activities. The Board emphasizes that the determination of whether a veteran is unable to secure of follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Given the Veteran’s level of education and occupational background, the above-cited evidence of record, and affording him the benefit of the doubt, the Board finds that the Veteran has been unable to secure or maintain a substantially gainful occupation due to his service-connected PTSD, bilateral hearing loss, and tinnitus. Accordingly, an extraschedular TDIU is warranted from July 26, 2010 to August 9, 2010. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.S. Mahoney 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.