Citation Nr: 21029624 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 11-20 169A DATE: May 14, 2021 REMANDED Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Navy from November 1976 to February 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in September 2020 when it was remanded to the Agency of Original Jurisdiction (AOJ) for additional development. A total disability rating for compensation purposes may be assigned on the basis of individual unemployability 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. 38 C.F.R. § 4.16(a). In such an instance, if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. In adjudicating the issue of entitlement to a TDIU, the Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected conditions and advancing age, which would justify a TDIU. The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. The Veteran contends that he is unable to work due to his service-connected disabilities. Here, the Veteran is service connected for major depressive disorder recurrent with unspecified anxiety disorder, alcohol use disorder in partial remission, and cannabis use disorder in early remission, rated at 50 percent disabling from March 25, 2010. Because major depressive disorder recurrent with unspecified anxiety disorder, alcohol use disorder in partial remission, and cannabis use disorder in early remission is the only disability that has been service connected for the Veteran, his total disability rating is 50 percent from March 25, 2010. Therefore, the Veteran does not meet the schedular criteria for entitlement to a TDIU. Concerning whether the Veteran's claim should be referred for extraschedular consideration, the record suggests that the Veteran is unable to work. Following the September 2020 Board remand, the Veteran was afforded a VA examination in October 2020 to determine the current severity of his service-connected major depressive disorder recurrent with unspecified anxiety disorder, alcohol use disorder in partial remission, and cannabis use disorder in early remission, and to obtain an opinion pertaining to the Veteran's level of occupational and social impairment with regard to his mental disability. The October 2020 VA examiner opined that the Veteran's service-connected major depressive disorder recurrent with unspecified anxiety disorder, alcohol use disorder in partial remission, and cannabis use disorder in early remission resulted in total occupational and social impairment. The examiner noted the following symptoms that applied to his service-connected disability: depressed mood; anxiety, suspiciousness; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; chronic sleep impairment; speech intermittently illogical, obscure, or irrelevant; difficulty in understanding complex commands; impaired judgment; disturbances of motivation and mood; inability to establish and maintain effective relationships; suicidal ideation; and persistent delusions or hallucinations. The examiner observed that the Veteran's thought process was clear, but not always logical or goal oriented. She reported that he demonstrated delusions of grandeur, but denied experiencing any auditory or visual hallucinations. She noted the Veteran's memory was fair, but his judgement was impaired. Moreover, the Veteran was found unemployable based on his affective/mood disorder and personality disorders/conduct disorders by the Social Security Administration (SSA) in November 2005. Although decisions of the SSA are not binding on VA, this evidence suggests that the Veteran may have been unable to obtain or maintain subsequently gainful employment due to his service-connected disabilities, with consideration of the veteran's background including his employment and education history. 38 C.F.R. §§ 3.321(b), 4.16(b). In such circumstances, VA must consider TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). The Board cannot, however, 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, 9-10 (2001). Recently, the Court of Appeal for Veterans Claims explained that this initial extraschedular referral decision under § 4.16(b) should address whether 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). In this case, given that the Veteran is in receipt of SSA disability benefits due to primarily to dysthymic disorder, the Board finds that there is a reasonable possibility that the Veteran is unemployable due, in part, to his service-connected disability. Accordingly, the issue of the Veteran's entitlement to a TDIU must be remanded for referral to the Director, Compensation Service, for consideration of an extraschedular TDIU. See 38 C.F.R. § 4.16(b). Additionally, when this issue was last before the Board in September 2020, the Board noted that there were several addresses of record for the Veteran which resulted in returned mail. On remand, the Board directed the AOJ to confirm the Veteran's current mailing address. Before sending any additional correspondence to the Veteran, the AOJ verified the Veteran's current mailing address through a CLEAR report obtained in September 2020. The AOJ sent the Veteran a duty to assist letter on October 8, 2020 requesting that the Veteran complete and return the enclosed VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, and VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefit, as part of his TDIU claim, to the address obtained in the September 2020 CLEAR report. The Veteran did not respond to the AOJ's letter; however, it appears that the Veteran may not have received the duty to assist letter. In a letter dated November 6, 2020, the AOJ sent the Veteran a letter advising him that the enclosed correspondence was mailed to him on October 8, 2020, but that it has since received mail returned to it from that same address. This November 6, 2020 letter was sent to the Veteran's newly discovered address. In a deferred rating decision dated December 2020, it was noted that it appeared that the Veteran did not receive the October 8, 2020, duty to assist letter because he had changed addresses on several occasions. The deferred rating decision instructed the AOJ to contact the Veteran and establish his current mailing address, and then update all records to reflect the change of address if it was different from the last known address. The deferred rating decision further instructed the AOJ to resend the October 8, 2020 duty to assist letter once a current address for the Veteran was established. The AOJ did not contact the Veteran to establish a current mailing address and did not resend the October 8, 2020, duty to assist letter to the Veteran's verified current mailing address as had been instructed by the December 2020 deferred rating decision. Rather, the AOJ issued a supplemental statement of the case in January 2021 denying extraschedular consideration for a TDIU because the Veteran failed to submit a VA Form 21-8940 to determine his work history and eligibility. Since it appears that the Veteran might not have received the October 8, 2020, duty to assist letter, on remand, the AOJ should send a new duty to assist letter that includes a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, and VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefit, for the Veteran to complete and return to VA. The Board notes that a new current residence for the Veteran was listed in a letter received by VA on April 30, 2021; however, due to the Veteran's history of frequently changing mailing addresses, on remand, the AOJ should confirm the Veteran's current mailing address before sending any mail pertaining to this remand. Furthermore, the Board notes that although the examiner's findings from the October 2020 VA mental disorders examination indicate that the Veteran's Service-connected major depressive disorder recurrent with unspecified anxiety disorder, alcohol use disorder in partial remission, and cannabis use disorder in early remission may have increased in severity, that issue is not currently before the Board. If the Veteran wishes to seek entitlement to an increased disability rating for his service-connected major depressive disorder recurrent with unspecified anxiety disorder, alcohol use disorder in partial remission, and cannabis use disorder in early remission, he may file a claim with the RO. The matters are REMANDED for the following action: 1. Confirm the Veteran's current mailing address. All attempts to secure the Veteran's current mailing address must be documented in the record. 2. Send the Veteran a notification letter with respect to the issue of entitlement to a TDIU. The letter should include a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, and VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefit, for completion and return to VA. 3. Complete any necessary development in view of the Veteran's response to the above notification letter, to include the scheduling of any additional VA examinations deemed warranted. 4. Once the above development has been completed, refer the issue of entitlement to a TDIU to the Director of Compensation and Pension Service for extraschedular consideration in accordance with 38 C.F.R. § 4.16(b), for a determination based on the evidence of record. 5. Then, readjudicate the issues on appeal. If the benefit sought on appeal remains denied, issue a Supplemental Statement of the Case. After the Veteran and his representative have had an adequate opportunity to respond, return the appeal to the Board. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Fairlie, 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.