Citation Nr: 21029229 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 18-00 009A DATE: May 13, 2021 REMANDED Entitlement to an earlier effective date than July 8, 2014 for the grant of a total rating based on individual unemployability (TDIU), to include extraschedular consideration, is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1981 through April 1983. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from October 2008 and September 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was provided a hearing before the undersigned Veterans Law Judge in June 2020. The transcript has been associated with the file. Entitlement to an earlier effective date than July 8, 2014 for the grant of a TDIU, to include extraschedular consideration, is remanded. The Veteran contends that she is entitled to an earlier effective date prior to July 8, 2014, for the grant of TDIU. The Veteran raised her claim for TDIU in a July 2007 application. It was denied in an October 2008 rating decision, and the Veteran appealed. The Board remanded the claim in June 2016, and while in remand status, TDIU was granted in a September 2016 rating decision, effective July 8, 2014. The Veteran appealed the effective date. The record supports that the Veteran stopped working in 2007. However, the sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough, as a high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment. Smith v. Shinseki, 647 F.3d 1380, 1385 (Fed. Cir. 2011). There are requirements to be met to find entitlement to a TDIU. Specifically, if there is only one service-connected 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 sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation Service, for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In this case, the Board finds that the Veteran's claim for a TDIU under the provisions of 38 C.F.R. § 4.16 (b) prior to July 8, 2014 should be submitted to the Director of Compensation for a determination as to whether a TDIU should be awarded on an extraschedular rating basis. In so finding, the Board takes note that the Veteran was awarded a TDIU, effective July 8, 2014, based on a July 2016 traumatic brain injury (TBI) examination, which found that the residuals of her TBI would cause difficulty learning new, processing, and remembering new tasks with complex jobs. However, in July 2013, the Veteran reported similar symptoms of memory loss, losing tract of what she is saying mid-sentence, needing assistance remembering appointments and dates, and getting confused while driving. At the June 2020 hearing, she testified that her memory issues, anger issues, and impulsive behaviors caused by her TBI made it hard to return to work and that her problems prevented work since 2007. She also testified that she had the exact same symptoms in 2020 that she had prior to July 2014. An April 2015 independent examiner notes that the Veteran's service-connected disabilities limited her ability to perform jobs that required short term memory, restricts working any location where there were loud noises, and prevents jobs where balance is necessary in the work environment. Ultimately, the examiner determined that the Veteran's TBI caused functional deficits causing difficulty for her to perform in the workplace and avocational basis. The Board accepts that the Veteran has had problems with memory issues, spatial orientation, aphasias, and executive functioning prior to July 2014, as she has consistently reported the such symptoms were present. The RO has conceded that such symptoms would preclude substantial gainful activity, as shown through their grant of TDIU effective July 8, 2014. Thus, based on the totality of record, the Board finds that referral to Director for an extraschedular evaluation, prior to July 8, 2014, is warranted. The matter is REMANDED for the following action: Refer this case to the Under Secretary for Benefits of the Director, Compensation and Pension Service, for consideration of assignment of an extraschedular TDIU, prior to January 31, 2011, under the provisions of 38 C.F.R. § 4.16(b). Note that the claim stems from an original application for TDIU received in July 2007. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.B. Mmeje, 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.