Citation Nr: 21029671 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 15-23 096 DATE: May 14, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the Air Force from February 1971 to December 1973. This matter before the Board of Veterans' Appeals (Board) is on appeal from a June 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia (Agency of Original Jurisdiction (AOJ)). The Veteran testified at a video conference hearing before the undersigned in October 2018. A transcript of the proceeding is of record. This matter was most recently before the Board in September 2020. The Board remanded on the issue of entitlement to TDIU to seek a VA Form 21-8940 from the Veteran, as well as to allow the AOJ the opportunity to assign a disability rating for his newly service connected posttraumatic stress disorder (PTSD). A review of the file reflects that the AOJ assigned a 50 percent disability rating for the Veteran's PTSD; additionally, the Veteran provided a VA Form 21-8940. The Board thus finds that the AOJ substantially complied with the remand directive in accordance with Stegall v. West, 11 Vet. App. 268, 271 (1998). In January 2021, the Veteran revoked the power of attorney for his prior representative. Regrettably, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the issues on appeal, in order to afford the Veteran every possible consideration. For VA purposes, total disability exists when there is any impairment of the mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. A total disability rating may be granted where the schedular rating is less than 100 percent and the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Generally, to be eligible for a TDIU, a percentage threshold must be met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). 38 C.F.R. § 4.16(a) provides that consideration of such a rating is warranted if a veteran has one service-connected disability rated 60 percent or more or, if there are two or more such disabilities, there must be at least one that is rated 40 percent or more, with all disabilities combining to 70 percent or more. 38 C.F.R. § 4.16(a). In the case at hand, the Veteran is presently service-connected for PTSD, rated as 50 percent disabling. As this is the only disability for which he is service-connected, the Veteran does not meet the schedular requirements for eligibility for a TDIU rating. Nonetheless, all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the TDIU threshold percentage standards, should be referred to the Director of Compensation Service for extraschedular consideration. 38 C.F.R. § 4.16 (b). In this regard, 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). Recently, the Court addressed the appropriate standard for the Board to apply in determining whether to remand the issue of entitlement to a TDIU pursuant to 38 C.F.R. § 4.16(b) for referral to the Director. Ray v. Wilkie, 31 Vet. App. 58 (2019). The question for the Board is whether there is sufficient evidence to substantiate a reasonable possibility that a Veteran is unemployable by reason of his service-connected disabilities. Id. In this case, there is sufficient evidence to substantiate a reasonable possibility that the Veteran is unemployable due to his service-connected disability. According to the Veteran's Application for Increased Compensation Based on Unemployability, his highest level of education is one year of college; it does not appear he graduated or earned a degree. He reportedly last worked full-time in March 1996, the date when he allegedly became too disabled to work. The most he earned in one year was $50,000 in 1994 the year he worked as a supervisor for Motorola Lighting. The record reflects that while the Veteran was still employed for Motorola, he suffered a "psychological crisis" at his workplace, prompting his employer to request the Veteran undergo a psychological evaluation. The results of this evaluation revealed he suffered from major depression and the evaluating psychiatrist declared him disabled. The Veteran indicates he attempted to obtain records from Motorola Lighting, but they are no longer in business and the corporate entity has been unhelpful thus far. Moreover, the Social Security Administration (SSA) has reported they destroyed the records used to determine that the Veteran was entitled to SSA benefits. Based on these contentions, the Board finds that there is sufficient evidence to substantiate a reasonable possibility that a Veteran is unemployable by reason of his service-connected PTSD. Consequently, a remand for entitlement to a TDIU pursuant to 38 C.F.R. § 4.16(b) for referral to the Director is warranted. The matters are REMANDED for the following action: 1. The AOJ should refer the Veteran's claim of entitlement to TDIU on an extraschedular basis to the Director of Compensation Service to determine whether an extraschedular rating is warranted under 38 C.F.R. § 4.16(b). 2. Thereafter, readjudicate the claim. If any benefit sought on appeal remains denied, furnish the Veteran and his representative, if any, a supplemental statement of the case and an appropriate period of time to respond. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Victoria A. Banis, 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.