Citation Nr: 21027724 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 17-06 370 DATE: May 6, 2021 REMANDED Entitlement to total disability based on individual unemployability due to service-connected disabilities (TDIU) from September 29, 2014 is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from October 1967 to November 1970. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The March 2015 rating decision granted service connection for posttraumatic stress disorder with a 30 percent disability rating, effective September 29, 2014. The Veteran timely appealed the initial rating assigned. The RO granted an initial rating of 50 percent, but no higher, in July 2016. In November 2018, the Boar denied an initial rating higher than 50 percent. In an August 2019 decision, the Court of Appeals for Veterans Claims (the Court) vacated the November 2018 Board decision to the extent that the Board had not adjudicated the issue of entitlement to a total disability based on individual unemployability due to service-connected disabilities (TDIU) pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009) and remanded the issue to the Board for adjudication. In a March 2020 decision, the Board denied entitlement to a TDIU prior to January 23, 2019. The Veteran appealed this decision to the Court. In December 2020, the Court granted a Joint Motion for Remand (JMR) which requested a vacatur and remand of the Board's March 2020 decision. As explained below, the Board is remanding this claim for referral to the Director of Compensation Services consistent with the instructions in the December 2020 Joint Motion for Remand. Entitlement to total disability based on individual unemployability due to service-connected disabilities (TDIU) prior to January 23, 2019, is remanded. The Veteran contends that he is entitled to a TDIU for the period prior to January 23, 2019. Under the applicable criteria, all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. See 38 C.F.R. § 4.16. A finding of total disability is appropriate when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. See 38 C.F.R. §§ 3.340(a)(1), 4.15. In determining whether unemployability exists, consideration may be given to a veteran's level of education, special training, and previous work experiences, but not to his age or to any impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. A total disability rating for compensation purposes may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and the combined rating must be 70 percent or more. See 38 C.F.R. § 4.16(a). In this case, the Veteran is in receipt of service connection for one disability: posttraumatic stress disorder (PTSD), rated 50 percent from September 29, 2014, to January 23, 2019. As the Veteran timely appealed the initial rating assigned when service connection was granted, the appeal period in this case begins September 29, 2014. Harper v. Wilkie, 30 Vet. App. 356, 361-62 (2018) (the Veteran's notice of disagreement with the initial rating assigned in connection with the grant of service connection, combined with evidence of unemployability, resulted in the issue of entitlement to a TDIU from the effective date of the grant of service connection being on appeal). At no point during the appeal period did the Veteran meet the schedular criteria for a TDIU until he was granted a 100 percent rating effective January 23, 2019. Although a 100 percent rating does not necessarily render TDIU moot, it does so when there is only one disability for which the Veteran is in receipt of service connection. See Buie v. Shinseki, 24 Vet. App. 242 (2010); Bradley v. Peake, 22 Vet. App. 280 (2008) (a 100 percent schedular rating does not necessarily render the issue of entitlement to a TDIU moot, as the TDIU could in certain circumstances render the Veteran eligible for special monthly compensation benefits pursuant to 38 U.S.C. § 1114(s)). Even where a veteran does not meet the schedular criteria of 38 C.F.R. § 4.16(a), VA must consider whether TDIU is warranted on an extraschedular basis under 38 C.F.R. § 4.16(b). However, the Board cannot consider entitlement to TDIU under 38 C.F.R. § 4.16(b) in the first instance, but must first remand the claim for referral to VA's Director of Compensation Service if such consideration is warranted. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Although the holding of Bowling has been questioned, see Wages v. McDonald, 27 Vet. App. 233, 239-240 (2015) (Kasold, C.J., concurring) ("The Bowling holding was rendered with little analysis of 38 C.F.R. § 4.16(b) or its interplay with the statutory scheme for adjudicating claims, which requires decisions of an agency of original jurisdiction to be appealed to the Board and final decisions to be rendered by the Board, see 38 U.S.C. §§ 7104 and 7105. Frankly, Bowling appears to be wrongly decided"), the Court recently declined to address whether it should be overruled. See Stafford v. Wilkie, No. 18-4520, 2020 U.S. App. Vet. Claims LEXIS 662 (Apr. 15, 2020) (nonprecedential panel Order) (dismissing the appeal as moot) and id., slip op at 2 (Greenberg, J., dissenting) ("What evil lurks behind the Court deciding whether Bowling v. Principi, 15 Vet. App. 1 (2001) remains good law?"). Thus, the Board cannot address in the first instance whether the Veteran is entitled to TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). The pertinent question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. Van Hoose, 4 Vet. App. 361, 363 (1993). Substantially gainful employment" in 38 C.F.R. § 4.16(b) has economic and noneconomic components. 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," while the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. Ray v. Wilkie, 31 Vet. App. 58 (2019). When determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to the veteran's history, education, skill, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray, 31 Vet. App. at 74. In the July 2016 VA examination for PTSD, the examiner noted that, other than his children and grandchildren, "the Veteran generally avoids other people," and that he does not like to go to public places unless his family is with him. The Veteran said he last worked in 2003, and that he repeatedly quit jobs after becoming agitated and telling off co-workers or supervisors. The examiner noted the following symptoms: depressed mood, anxiety, suspiciousness, chronic sleep impairment, impaired judgment, and difficulty in establishing and maintaining effective work and social relationships. The Veteran's February 2021 VA Form 8940, Application for Increased Compensation Based on Unemployability, indicated that he is a high-school graduate with no college education. He stated that he was self-employed from 1978 to May 1999, and then worked as a woodworker for a company in Garland, Texas, from June 1999 to August 2002. The Veteran indicates that he had not worked since August 2002, that his PTSD affected his employment, and that it caused him to lose his concentration. See VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability, March 15, 2021. In April 2021, a private psychologist prepared a psychological evaluation report. The Veteran stated that as a woodworker he accidentally cut off the tip of one of his fingers because his PTSD had impaired his concentration. He also reported that he could not keep a job very long because he would become angry and speak angrily to co-workers or supervisors. The psychologist stated that the Veteran "definitely" had a compromised mental/ emotional state in the period from September 2014 to January 2019. The Board must remand for referral of entitlement to a TDIU to the Director of Compensation Service if a veteran does not meet the schedular requirements for TDIU but there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities." Ray v. Wilkie, 31 Vet. App. 58, 66 (2019). The above reflects that there is sufficient evidence that the Veteran is unemployable by reason of his service-connected PTSD. Consequently, remand for referral to the Director is warranted. The matter is REMANDED for the following action: (Continued on the next page) Refer the claim for entitlement to a TDIU to the Director of Compensation Service for an opinion as to whether the Veteran's service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation, pursuant to 38 C.F.R. § 4.16(b), during the period from September 29, 2014, to January 23, 2019. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Dean, 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.