Citation Nr: 21030275 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 11-13 798 DATE: May 18, 2021 ORDER A total disability rating based on individual unemployability (TDIU) is granted from December 5, 2017. REMANDED Entitlement to a TDIU prior to December 5, 2017, is remanded. Entitlement to an initial rating in excess of 30 percent prior to December 5, 2017, and a rating in excess of 70 percent thereafter for posttraumatic stress disorder (PTSD) is remanded. FINDING OF FACT Since December 5, 2017, the Veteran has been unable to secure or follow a substantially gainful occupation due to his service-connected PTSD. CONCLUSION OF LAW Since December 5, 2017, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from June 1988 to July 1991, with service in Southwest Asia. He is highly decorated, receiving two Bronze Stars. These matters come to the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at Board hearings in December 2011 and November 2020. The hearing transcripts are of record. In a March 2021 letter, the Veteran was informed of his right to testify before a third Veterans Law Judge (VLJ) who would be assigned to a panel along with the two prior VLJs to decide his case, but he waived the right for the additional hearing in a March 2021 response. See Arneson v. Shinseki, 24 Vet. App. 379 (2011). Each of the VLJs who held a hearing is on the present panel deciding the case. These matters were previously before the Board in December 2013, October 2017, and March 2018, at which time the claims were remanded for further development. 1. A TDIU is granted from December 5, 2017. The Veteran contends that he is entitled to a TDIU due to his service-connected PTSD as it has resulted in his inability to maintain or follow a job. He asserts he has not been able to work since at least November 2017 when his PTSD worsened. At the time, he worked as a groundskeeper. He had verbal and physical altercations with co-workers and had a couple of verbal altercations with his former supervisor. His former supervisor stated the Veteran missed several days of work and was hardly working. The Veteran reported he was off work 13-14 days per month. He stated he knew his condition had progressed because law enforcement was involved during an altercation. Prior to his work as a groundskeeper, he worked for a temporary agency off and on from 2011 to 2016. See Hearing Testimony (December 2011) and Hearing Transcript (November 2020); VA Form 21-8940 Veterans Application for Increased compensation Based on Unemployability (November 2020). A. Applicable Law A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more, and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system are considered as one disability. Id. Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when a Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability or disabilities, and consideration is given to the Veteran's background including employment and educational history. 38 C.F.R. § 4.16(b). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must consider the individual Veteran's education, training, and work history. See Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); Van Hoose v. Brown, 4 Vet. App. 361 (1993); Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). The Board notes that the United States Court of Appeals for the Federal Circuit held that the determination of whether a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the RO. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). The United States Court of Appeals for Veterans Claims (CAVC) held that "[i]n determining whether a Veteran can secure and follow a substantially gainful occupation, attention must be given to": (1) the Veteran's history, education, skill, and training; (2) whether the Veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue, in which 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 (3) whether the Veteran has the mental ability to perform the activities required by the occupation at issue, in which 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 v. Wilkie, 31 Vet. App. 58 (2019). Additionally, "[b]y discussing [the] potentially relevant factors, we don't create a checklist that must be run completely through in every case. Instead, discussion of any factor is only necessary if the evidence raises it." Id. at 73. As a preliminary matter, the Board concludes that the criteria for schedular TDIU are met as of December 5, 2017. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.16, 4.18, 4.19. The Veteran is service connected for only one disability, PTSD. The Veteran has met the schedular requirement for a TDIU since December 5, 2017, when his service-connected PTSD was rated at 70 percent. Prior to December 5, 2017, the Veteran does not meet the schedular requirement for a TDIU because his service-connected PTSD was not rated at 60 percent or higher during that period. The Veteran's claim for a TDIU was raised by the record in August 2006 when the Veteran asserted he was laid off at his construction job due to getting into an argument with a co-worker over tools. See Medical Treatment Record - Government Facility (February 2008). Thus, the period on appeal includes consideration of entitlement to an extraschedular TDIU prior to December 5, 2017, and entitlement to a schedular TDIU from December 5, 2017, onward. The first question for the Board is whether the Veteran has been unable to secure or follow a substantially gainful occupation by reason of his service-connected disability since December 5, 2017. B. Facts In the Veteran's application for TDIU, he asserted his service-connected PTSD prevents him from securing or following any substantially gainful occupation. He stated he became too disabled to work as of November 2017 when he last worked full-time. His prior work experience included work as a groundskeeper from October 2016 to November 2017 and as a contractor for a temporary work agency from May 2011 to July 2014. He has a high school education, but no college degree or additional training. See VA Form 21-8940 Veterans Application for Increased compensation Based on Unemployability (November 2020). By way of history, August 2006 VA mental health records (MHRs) show the Veteran reported he was laid off from his construction job because he engaged in an argument with a co-worker about tools. He reported early to work to get the tools he needed, but a co-worker wanted to borrow his tools. He stated he was planning to look for another job. On examination, the Veteran had an appropriate affect and was cooperative, alert, and oriented. He had logical thought process, lucid thought content, and no perceptual disturbances. His judgment was intact, insight was fair, and was of average intelligence. See Medical Treatment Record- Government Facility (MTR) (February 2008). May 2008 VA MHRs show the Veteran reported he was working, driving garbage trucks. He stated he was married once and had two children. While he was in contact with his children, their relationship was not close. He stated he rarely did anything with them. He reported he had a girlfriend now of many years but complained of problems in the relationship. He stated she wanted too much closeness, which made him uncomfortable. He reported trouble with sleep initiation; that it took about two hours after going to bed to fall asleep. He reported past episodes of suicidality, but denied any current suicidal ideation, intent, or plan. On examination, his appearance was clean with casual dress. He was alert, cooperative, alert, attentive, and oriented to person, place, and time. His speech was of normal rate and tone. His mood was euthymic, but moderately depressed. His thought process was logical, and goal directed. His abstract thinking was normal and was of average intelligence. He did not have any perceptual or thought disturbances. There was no evidence of psychotic symptoms. His judgment was normal, insight was present and did not complain of homicidal ideation. He restarted prescribed medication but declined to participate in a [psychiatric] study due to his work schedule for his new job. See MTR (May 2008). In an August 2008 VA PTSD examination report, the examiner opined the Veteran's PTSD resulted in occasional decrease in work efficiency and intermittent periods of an inability to perform occupational tasks due to PTSD signs and symptoms, but he had generally satisfactory functioning (routine behavior, self-care and normal conversation. His PTSD symptoms included hypervigilance and avoidance behaviors, which caused an occasional decrease in work efficiency. The Veteran also submitted a lay statement in August 2008 where he asserted his health was worsening. He was prescribed medication for his symptoms of depression and nightmares. He was always tired and reported that he purchased many over the counter medications. He stated he just wanted to be able to feel good for at least three days in a row. See VA Form 21-4138 Statement in Support of Claim (August 2008). In August 2009, the Veteran submitted a series of lay statements, written by himself, his mother, his wife, his daughter, and his co-worker. In his statement, he asserted his medication had recently doubled for Prozac and cyproheptadine. He was starting to forget many small things, such as leaving the car running, forgetting long-time friends' names, and forgetting to feed his dog. He was missing a lot of work. He had to pull himself out of bed when he did get up and was losing interest in sex. He did not want his significant other to touch him because he did not want to touch her. He also reported having numerous violent behavioral outbursts and two fights, sometimes in one week. When they occur, he begins to breathe hard and his hands become sweaty. He did not feel the same way he used to; he had lost desire for hobbies and playing basketball. In his mother's statement, she stated the Veteran did not cause any problems or talked back to her until he returned from service. In his wife's statement, she stated the Veteran had become more depressed, was not going to work, and was not keeping his haircut appointments. He provoked her in arguments. He forgot small, everyday tasks, such as forgetting to turn off the stove or letting his bath water overflow a couple times. He displayed slurred speech often. He had more nightmares and restless nights. She believed his condition had worsened. In the statement from his daughter, she stated his condition had worsened. He forgot names sometimes and had violent outbursts. There were also occasions where the spoke quickly and started breathing hard. In the co-worker statement, Mr. J.C. noted he worked with the Veteran for the last two years and noticed a lack of interest in working and completing job tasks. However, he did not have any problems. He stated that the Veteran was not happy go lucky as he used to be. See VA Form 21-4138 Statement in Support of Claim (August 2009), Buddy/Lay Statement (August 2009)(1-4). The Veteran and his wife also made similar assertions in November 2009 and December 2009 statements. See Correspondence (November 2009); see also Buddy/Lay Statement (December 2009). In a February 2010 statement, the Veteran reported a history of incarceration and that he served time in prison, but did not specify the bases for his incarceration. See VA Form 21-4138 Statement in Support of Claim (February 2010). An October 2010 VA examination report shows the Veteran complained of chronic fatigue causing increased absenteeism and a lack of stamina at work. He reported he was fired from a job and told by his employer that a young man should not be tired that easily. He then went on to work in a construction job, but noted increasing tiredness, which has gotten progressively worse. In a June 2011 VA examination report, the Veteran reported he last worked as a garbage worker helper in February 2011. He was with that employer for three years but left that job when he had a big argument with his supervisor. The supervisor stated he was missing too many days. The Veteran stated he did not go because he did not feel like going. The Veteran reported he got into a fight with his brother and that the police were called, but no one was arrested. On another occasion, someone reported to the police that he was abusing his children. However, the authorities investigated [the situation] and found it to be untrue. Another time, he got into a shouting match with his mother and police were called. However, he left before they arrived. He reported that he last drank alcohol two years ago and that he used to drink every day when he got off work. He admitted to occasional use of marijuana in 2008 but stopped three years ago. On examination, he was clean, neatly groomed, and appropriately dressed. He stuttered and stated his stuttering had been going on for a while, less than five years, but longer than a year. He was hesitant when speaking with a delay. He was cooperative, friendly, attentive, manipulative, and guarded. Furthermore, the examiner indicated that he presented as severely impaired to a degree that he would not be able to function even as well as he would admit. His affect was constricted and stated he had been in a 'bad mood" since he was sleeping on the floor. He was oriented to person and place. He had evasive thoughts and suicidal ideation. He understood the outcome of his situation and had proper insight that he had a problem. He reported having sleep impairment in that he had trouble getting to sleep and reported sleeping only about three hours per night. He had inappropriate behavior, including fighting. The examiner also noted that he felt the Veteran was malingering on objective tests of memory and effort of cognitive tasks. He was able to interpret proverbs. He reported obsessive/ritualistic behavior and panic attacks for the last three years. While he reported suicidal thoughts, he stated he had no plan and would not act on it. His impulse control was fair. He asserted his PTSD prevented him from shopping and caused a moderate impairment in his grooming. September 2012 MHRs show the Veteran had a positive suicide risk screening; he reported feeling hopeless about the present or the future. See CAPRI (February 2017). In December 2013, the Board remanded the claim to afford the Veteran an updated VA examination and to obtain outstanding VA records. August 2014 MHRs show the Veteran reported having more frequent symptoms of PTSD, anger, having a short fuse, and verbal aggression that was impacting family relationships. He stated he ran out of medication, including antidepressants approximately 2.5 years prior and that he got off track. He reported he hit and threw things when angry but did not harm people or animals. He reported having nightmares, insomnia, depression, nervousness to the point of panic attacks (sweating, heart racing, nausea and vomiting during abrupt anxiety attacks and had anticipatory worry), lack of energy, anhedonia, and flashbacks. See CAPRI (February 2017). September 2014 VA MHRs show the Veteran was admitted for a psychosocial residential rehabilitation treatment program (PRRTP) due to having difficulty with family relationships. He reported symptoms of due to irritability, isolation, poor crowd tolerance, hyper alarm to loud noises and nightmares. He denied suicidal or homicidal ideation. However, it was noted that the Veteran "eloped" or escaped. See MTR (September 2014) and VAMC Report of Hospitalization (September 2014). In a May 2016 VA examination report, the examiner opined the Veteran's PTSD resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. His symptoms include depressed mood, anxiety, chronic sleep impairment and memory loss, such as forgetting names, directions, or recent events. The examiner further opined the Veteran was mildly impaired in his ability to engage in physical and sedentary employment due to PTSD. He noted the Veteran received no mental health treatment for his service-connected PTSD. The examiner noted there was no new medical evidence indicating any type of severity as it relates to his PTSD. As the Veteran went AWOL in a PTSD treatment program in 2014 and had not received mental health treatment for PTSD or any mental disorder since that time, he concluded there is no new medical evidence indicating an increase in severity of the Veteran's service-connected PTSD since his prior exam in June 2011. In October 2017, the Board remanded the claim once more to obtain an adequate VA examination as the Veteran's PTSD was evaluated under DSM-5 and not DSM-IV criteria, which was applicable at the time the claim was certified to the Board. In a December 2017 VA examination report, the examiner opined the Veteran's PTSD manifested in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment and thinking and/or mood. His symptoms included depressed mood, anxiety, near continuous panic or depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, inability to establish and maintain effective relationships, and impaired impulse control, such as unprovoked irritability with periods of violence. The examiner opined the Veteran's PTSD was at least as likely as not due to service and that he met the DSM-5 criteria for PSTD only. He also noted that the DSM-IV criteria and GAF scores were obsolete; thus, the examiner did not provide a discussion on those components. In an October 2018 VA examination report, the examiner opined the Veteran's PTSD manifested in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran's symptoms included depressed mood, anxiety, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, inability to establish and maintain effective relationships, impaired impulse control, such as unprovoked irritability with periods of violence. On examination, the Veteran's mood was dysphoric with anxiety. His affect was restricted. His speech was somewhat monotone in nature. His insight and judgment were intact. While the Veteran did not report suicidal or homicidal ideation or auditory verbal hallucinations, he did report that he had harbored thoughts of life not worth living at times and feelings of emptiness. He reported ongoing impairment from PTSD regarding social/interpersonal and occupational functioning in addition to his mood and quality of life. He reported his PTSD symptoms cost him previous jobs, including his most recent job. In a November 2019 VA examination report, the examiner noted the Veteran had diagnoses of PTSD (chronic) and major depressive disorder (recurrent and severe). He opined the Veteran's psychiatric disabilities manifested in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood; and it was not possible to differentiate what portion of the impairments were caused by each mental disorder. His symptoms included depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a work like setting, and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The examiner opined the Veteran's major depressive disorder (recurrent and severe) did not represent a separate diagnosis but a progression of the PTSD diagnosis. He had no prior mental health history and there was no family history of depression. After his exposure to stressors during his deployment in Operation Desert Storm, he developed PTSD which now progressed to Major Depressive Disorder, recurrent, severe. He also opined that it was at least as likely as not that his PTSD was aggravated beyond its natural progression. The Veteran's depression and PTSD were highly correlated, sharing overlapping symptoms. He opined it was likely the depression was aggravated beyond its natural progression by PTSD and that his PTSD impairs his ability to interact with others and engage in coping skills needed to manage depressive symptoms. On examination, the Veteran was casually dressed and appropriately groomed. He was cooperative and maintained good eye contact. Psychomotor activity was normal. His speech was sparse in rate, normal in tone and prosody. He gave terse, clipped answers to questions. His thought process was logical, organized and goal directed. There was no evidence of a thought disorder. He was alert and fully oriented. His concentration was poor. He used his fingers to slowly complete serial 7s with many errors. His memory was impaired for recent events. He recalled 4 digits forward and 4 backward. His judgment and insight were fair. He described his mood as "OK...a little jumpy." His affect was flat and abstract reasoning was fair. In a June 2020 VA examination report, the examiner opined the Veteran's PTSD manifested in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. He reported he had not worked since his last evaluation and that he was terminated from his employment in 2017 after a physical altercation with a coworker. The Veteran reported he was married to his wife; although, he sleeps separately and had increased irritability. He stated, "there's always stress in the air." He described decreased libido. He has one friend with whom he will converse sporadically. He reported he got into a physical altercation with his daughter last year after she did not clean up after moving out. He described panic and anxiety symptoms when in crowded places and leaving the house in general. The examiner noted his symptoms included depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a work like setting. On examination, the Veteran was casually dressed. His mood appeared mildly anxious and his affect was congruent. His eye contact was adequate. He appeared fully oriented on all spheres. The examiner noted the Veteran had diagnoses of PTSD and depressive disorder however, the latter seemed to have resolved since the last evaluation. He reported that his grandchildren have lessened his depression. Also, the June 2020 VA examiner clarified the Veteran only met the DSM-5 criteria for PTSD, not depressive disorder despite having symptoms of depression. He noted that the DSM-IV criteria and the use of GAF scores are obsolete, but acknowledged that the Veteran's GAF score would be consistent with a 45, indicating serious symptoms and significant impairment in social and occupational functioning. In a June 2020 individual unemployability statement, a VA examiner opined the Veteran had difficulty attending to or is easily distracted from tasks; he had difficulty maintaining concentration and focus on work over a period of time and tended to skip from one task to another without completing the prior task; he had intrusive thoughts which interferes with the ability to stay focused on the task at hand; he had significant difficulty accepting supervision or receiving instructions without becoming angry (authority conflict); he had significant difficulty remembering instructions and details of work assignments; he had difficulty functioning around other people, had difficulty functioning as a team member and felt uncomfortable around others; his sleep was so disrupted that he was usually fatigued at work, making concentration and focus on work assignments difficult; he was so depressed that he had difficulty sustaining energy and motivation to complete assignments at work; and he had other mental health problems that interfered significantly with the ability to work. Specifically, the Veteran described irritability that led to a physical altercation at work which led to his termination. The examiner also opined the Veteran missed significant periods of work due to service-related mental health condition. The Veteran reported he would miss at least 7 days out of the month because of his PTSD. C. Analysis Collectively, the preponderance of the evidence shows that the Veteran was unable to secure or follow substantially gainful employment, due to his service-connected PTSD since December 5, 2017. The Veteran's PTSD symptoms have manifested into interpersonal and occupational impairment that significantly impact his ability to follow substantial employment. There are several reports of record of verbal outbursts and physical altercations that have caused significant challenges in a work-setting and impeded his ability to secure substantial gainful employment. He reported he slept on jobs or did not show up to work because he did not feel like it, up to half a month. Such absence would not be tolerated by any substantial gainful occupation. It appears that his PTSD has not only waxed and waned over time but has progressed since December 2017. Even if the Veteran were to work in an isolated environment, his sleep impairment and history of sleeping on jobs, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty adapting to stressful circumstances and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene, would preclude him from work. The opinions of the VA examiners who rendered opinions in December 2017, October 2018, November 2019, and June 2020, particularly the June 2020 individual unemployability statement, are consistent with contemporaneous treatment records that demonstrate the Veteran would not be able to secure any work due to PTSD without significant challenges that are not conducive to a worklike setting. The Veteran testified at the November 2020 hearing that his PTSD did not worsen until around November or December 2017, which was the first time in a long time where law enforcement had to get involved during an altercation. As such, the Board assigns great weight to these opinions and the Veteran's own lay statements. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant); see also Maxson v. West, 12 Vet. App. 453 (1999), aff'd sub nom., Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Therefore, the Board finds the Veteran is entitled to a TDIU since December 5, 2017, the date when he met the schedular criteria for TDIU, as his service-connected PTSD rating increased to 70 percent based on evidence of record showing his PTSD worsened and it was demonstrated at that point that he is unable to secure or follow a substantially gainful occupation. REASONS FOR REMAND 1. Entitlement to a TDIU prior to December 5, 2017, is remanded. 2. Entitlement to an initial rating in excess of 30 percent prior to December 5, 2017, and a rating in excess of 70 percent thereafter for PTSD is remanded. Remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Concerning the claim for entitlement to TDIU on an extraschedular basis, the Veteran alleges that his service-connected PTSD impaired his ability to secure and follow substantially gainful employment prior to December 5, 2017. See Appellate Brief (October 2020). As noted previously, the requirements of C.F.R. § 4.16(a) are not satisfied prior to December 5, 2017. Generally, when the Board finds that an extraschedular rating may be warranted based on the above factors, it cannot grant an extraschedular rating in the first instance. Rather, it must remand the claim to the AOJ for referral to the Director of Compensation Service. See Anderson v. Shinseki, 22 Vet. App. 423, 428-29 (2009). The Board finds that remand to refer the case for to the Director of Compensation is appropriate in this case. Notably, while medical opinions rendered in the August 2008, June 2011, and May 2016 VA examination reports show the Veteran's psychosocial functional status was only mildly impaired, the June 2011 VA examiner noted several instances where the Veteran engaged in verbal altercations, including instances where the police were called, in his private life and at work. On the Veteran's TDIU application, the Veteran reported having a work history with intermittent periods of unemployment throughout the course of the appellate period. Thus, it appears that the Veteran was able to secure employment, but may have been incapable of following substantially gainful employment prior to December 5, 2017. Therefore, the Board finds referral is appropriate. In addition, the Veteran's work history is unknown from May 2006 to May 2011. The AOJ should mail a copy of VA Form VA 21-8940, Veterans Application for Increased Compensation Based on Unemployability, to the address on file to afford the Veteran an opportunity to submit work and education history information for the period at issue. This information is necessary for the Director of Compensation to make a determination on the extraschedular TDIU claim. Regarding the increased rating for PTSD claim, the evidence indicates that there may be outstanding relevant VA treatment records. At the November 2020 hearing, the Veteran reported that he receives treatment for his service-connected psychiatric disorder at VA Tuscaloosa Medical Center. The Board notes, however, that the most recent VA treatment records in his electronic claims file are dated in November 2019. A remand is necessary to obtain outstanding records of the Veteran's pertinent treatment to determine the current severity of his PTSD. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The matter is REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from November 2019 to the present. 2. Ask the Veteran to complete an updated TDIU claim form (VA Form 21-8940), including his work history from May 2006 to May 2011, and conduct appropriate development. 3. After completing directives #1 and #2, refer the issue of entitlement to a TDIU prior to December 5, 2017, to the Director of Compensation Service for consideration in accordance with 38 C.F.R. § 4.16(b). Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals M.E. Larkin Veterans Law Judge Board of Veterans' Appeals M. C. WILSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Pendleton, N. 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.