Citation Nr: 21028838 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 12-30 806 DATE: May 12, 2021 REMANDED Entitlement to a total disability rating based on unemployability (TDIU) prior to December 6, 2000 is remanded. REASONS FOR REMAND The Veteran had active military service from August 1966 to September 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions by a Department of Veterans' Affairs (VA) Regional Office (RO). The procedural history has been addressed most recently in a February 2020 Board decision and will not be addressed again herein. After compliance with an August 2019 Order from the United States Court of Appeals for Veterans Claims (Court), the February 2020 Board decision denied staged increased ratings of 20 percent from March 17, 2011 to May 23, 2017, and in excess of 40 percent thereafter for intervertebral disc syndrome at L4, spondylolisthesis L5-S1, residuals of a back injury, and TDIU prior to December 6, 2000. The Veteran appealed the portion of this decision which denied TDIU prior to December 6, 2000 to the Court and, in a December 2020 Order, the Court vacated the February 2020 Board decision and remanded the matter of entitlement to TDIU prior to December 6, 2000 for action consistent with the terms of a Joint Motion for Partial Remand (JMPR). The February 2020 Board decision had limited the Veteran's TDIU claim to consideration of the impact of his service-connected residuals of a back injury, alone, on his employability for the period from March 1994 to December 1999. However, in the JMPR, the parties agreed that, on remand, the Board was to consider the impact of all of the Veteran's service-connected disabilities on his employability as part of his claim for TDIU prior to December 6, 2000. Prior to December 6, 2000, the Veteran's service-connected disabilities consisted of posttraumatic stress disorder (PTSD) rated as 30 percent, a back disability rated as 10 percent disabling, scars rated as noncompensable, and GERD rated as noncompensable; his combined rating was 40 percent. Service connection (and separate 10 percent ratings) for were not in effect for a neurological disorder of the left lower extremity prior to January 25, 2006 or for a neurological disorder of the right lower extremity prior to May 24, 2017. Thus, as the combined ratings for all of the Veteran's service-connected disabilities prior to December 6, 2000 was 40 percent; the minimum schedular criteria was not met for this period, and the Veteran does not qualify for consideration of TDIU on a schedular basis. 38 C.F.R. § 4.16(a) Although the Veteran does not meet the minimum schedular criteria for consideration of TDIU prior to December 6, 2000, TDIU may still be assigned to a veteran who fails to meet the percentage standards if he or she is unemployable by reason of his or her service-connected disabilities. 38 C.F.R. § 4.16(b). Where there is plausible evidence that a claimant seeking extraschedular TDIU is unable to secure or follow a substantially gainful occupation and there is no affirmative evidence to the contrary, the Board is required to remand the claim for referral to the appropriate first line authority to consider entitlement on an extraschedular basis. Bowling v. Principi, 15 Vet. App. 1 (2001); Wages v. McDonald, 27 Vet. App. 233, 236 (2015) (holding that the Board is required to obtain the Director's decision before the Board may award extraschedular TDIU). In a December 2019 Informal Brief, the Veteran's attorney argues that the "combined impact of [the Veteran's] service-connected PTSD and service-connected low back disability rendered him totally disabled and unemployable for the period from March 8, 1994 to December 6, 2000." In addition, during the April 2016 Board hearing, Dr. E. T., a psychologist and certified rehabilitation counselor, testified that the Veteran has been unemployable since 1993 because of a "combination of the psychological as well as significant injury that he sustained." She also stated that in her opinion the Veteran was unable to work due to his service-connected back and psychological disabilities. Accordingly, the Board finds that there is plausible evidence that the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities so as to warrant referral to the Director of Compensation Services for an extraschedular TDIU rating prior to December 6, 2000 under § 4.16(b). The matters are REMANDED for the following action: The RO must refer the claim for a TDIU rating prior to December 6, 2000, to VA's Director of Compensation Services for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b). In so doing, the AOJ should note the information concerning the Veteran's education and past work experience and the impact his service-connected disabilities reportedly have on his employability, to include: (1) The April 2016 Board hearing testimony from Dr. E. T., a psychologist and certified rehabilitation counselor, that the Veteran has been unemployable since 1993 because of a "combination of the psychological as well as significant injury that he sustained." She also stated that in her opinion the Veteran was unable to work due to his service-connected back disability and his psychological disability. (2) The evidence prior to December 2000 which shows the Veteran's acquired psychiatric disability would probably cause difficulty working effectively with others on a consistent continuous basis (January 1997), caused several problems to include with sleep and memory, high anxiety causing ulcers, bland mood with mild to moderate depressive affect, and psychological stress (February 1997), and moderate to moderately severe difficulty in occupational functioning (January 1998). He was seeing his psychologist Dr. Grotsky twice a month (December 1997). His back caused severe pain (February 1997), and he reported he could only stand for two to three hours or sit for 30 minutes without pain (January 1998), he reported that he was unable to function due to his multiple medical problems (January 1998), he had difficulty lifting things (January 1998) and his back pain had been getting worse recently with slight radicular pain down into the leg (November 1999). M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K Hughes 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.