Citation Nr: 21026849 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 15-35 544A DATE: May 4, 2021 REMANDED Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from January 1965 to January 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which is the Agency of Original Jurisdiction (AOJ). In an April 2019 decision, the Board increased the Veteran's evaluation for posttraumatic stress disorder (PTSD) to 50 percent, recognized an implied claim of entitlement to TDIU raised by the record under Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009), and remanded the issue of entitlement to TDIU for further development. That development was completed, and the case was returned to the Board for appellate review. In January 2020, the Board denied entitlement to TDIU. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In December 2020, the Veteran's representative and VA's Office of General Counsel, representing the Secretary of VA, filed a joint motion for remand (Joint Motion) requesting that the Court vacate the Board's decision and remand the matter for readjudication in compliance with the directives specified. The Court issued an order in December 2020 granting the Joint Motion and returned the case to the Board. In the December 2020 Joint Motion, the parties agreed that the Board failed to adequately address the Veteran's statements as to his difficulties with coworkers and supervisors, to include verbal arguments and physical altercations, in denying entitlement to TDIU. Therefore, the Board finds that a remand is necessary to obtain a VA opinion concerning the impact of the Veteran's service-connected disabilities, to specifically include his statements regarding the impact of his PTSD on his ability to work, to include the functional impairment caused by the service-connected PTSD, given his education and employment background. In addition, the Veteran's representative has contended that the Board does not have the authority to grant TDIU in the first instance. See April 2021 Appellate Brief. However, in April 2019, the Board remanded the issue of entitlement to TDIU for the AOJ to adjudicate the issue in the first instance. The representative's argument is without merit as the AOJ adjudicated the matter before the issue in a November 2019 supplemental statement (SSOC) and a November 2019 rating decision before the matter was returned to the Board for appellate review. In the April 2021 Appellate Brief, the Veteran's representative acknowledged that the Veteran did not meet the schedular criteria for TDIU under 38 C.F.R. § 4.16(a), and requested that the matter be remanded to the AOJ to determine whether extraschedular consideration is warranted. 38 C.F.R. § 4.16(b) provides that all veterans who do not meet the schedular criteria for TDIU, but are otherwise unable to secure and follow substantially gainful occupation by reason of service-connected disabilities, shall be referred to the Director, Compensation and Pension Service, for consideration of an extraschedular rating of unemployability. The Board cannot consider entitlement to TDIU on an extraschedular basis in the first instance, but it is required to ensure that all cases where there is evidence of unemployability due to service-connected conditions are referred to the Director of Compensation and Pension Service for initial consideration under 38 C.F.R. § 4.16(b). See Bowling v. Principi, 15 Vet. App. 1 (2001). If the case returns to the Board following AOJ development on remand, and the evidence suggests that the Veteran is otherwise unable to secure and follow substantially gainful occupation due to his service-connected disabilities, the Board will determine whether remand for referral of extraschedular TDIU is required. The matters are REMANDED for the following action: The Veteran should be scheduled for a VA examination of his service-connected PTSD to address the functional impact of this disability for the purpose of evaluating entitlement to TDIU. The examiner must elicit from the Veteran his complete history regarding his level of education, any special training, and previous work experience. For TDIU purposes, the following is requested: (a) The examiner should obtain a history from the Veteran on his day-to-day activities to include hobbies, housework, yardwork, community involvement, and driving. (b) The examiner should ask the Veteran to describe in his own words the functional impact of the service-connected PTSD on his ability to perform work and work-like tasks. The Veteran's response should be recorded in the report(s). (c) Considering the Veteran self-report, coupled with the current examination findings and review of any pertinent clinical records, the examiner should indicate the objective functional effects of the Veteran's PTSD symptoms on his ability to perform work and work-like tasks. In rendering this opinion, the examiner should specifically comment on the Veteran's lay statement as to his difficulties with coworkers and supervisors, to include verbal arguments and physical altercations. See September 2010 VA PTSD examination report. A rationale should be provided for any opinion offered. If the examiner is unable to provide an opinion without resorting to speculation, then the examiner shall explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, the examiner shall comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. J. Barone Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Osegueda, 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.