Citation Nr: 21030594 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 12-11 845 DATE: May 19, 2021 REMANDED Entitlement to a total disability rating due to individual unemployability (TDIU), to include on an extraschedular basis, prior to May 29, 2012, is remanded. REASONS FOR REMAND The Veteran served honorably on active duty with the United States Navy from January 1990 to January 1996. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in August 2017, April 2018, and September 2019, at which time it was remanded for additional development. Entitlement to a TDIU on an extraschedular basis for the period prior to May 29, 2012. The Veteran contends that, due to his PTSD, lumbar back disability, and right leg radiculopathy, he was entitled to TDIU prior to May 29, 2012. He reported irritability, anxiety, and suicidal ideation; becoming overwhelmed with routine changes; and inability to handle stress, resulting in him leaving work due to frustration. See Medical Treatment Records - Furnished by SSA (February 2021). He reported that his back and neck restricted him from walking more than 150 yards. Id. He reported working as a labor worker from 2005 to 2010 and in line assembly prior to that between 1997 and 2004. Id. He also reported that he had not been employed since 2008 when he "'pretty much had a breakdown, and tried to commit suicide and wound up in the psych ward.'" Id. Prior to May 29, 2012, the Veteran was service-connected for posttraumatic stress disorder (PTSD) (50 percent from May 6, 2008); degenerative disc L4-5 and L5-S1 with minimal posterior bulging annulus from L3 through S1 (10 percent from February 6, 2012); and right lower extremity radiculopathy (20 percent from February 6, 2012). During the relevant period, the combined overall evaluation was 50 percent from May 6, 2008, and 60 percent from February 6, 2012. A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure and follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). When the percentage requirements for a schedular TDIU rating under 38 C.F.R. § 4.16(a) are not met, a TDIU on an extraschedular basis, may nonetheless be granted when a Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability or disabilities. See 38 C.F.R. § 4.16(b). In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court defined the term "unable to secure and follow a substantially gainful occupation" as having two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of the following: the veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Nonetheless, VA's policy is to grant a TDIU in all cases where service-connected disabilities preclude substantially gainful employment, regardless of the percentage ratings. See 38 C.F.R. § 4.16(b). Thus, the Board must determine whether the evidence indicates that the Veteran's service-connected disabilities, alone, preclude substantially gainful employment consistent with his education and occupational experience at any time during the claim period. If so, the Board is prohibited from assigning a TDIU on the basis of 38 C.F.R. § 4.16(b) in the first instance, and must, instead, remand the claim for referral to the Director of Compensation Service for consideration of the veteran's entitlement to an extra-schedular rating. See Bowling v. Principi, 15 Vet. App. 1 (2001). In Ray v. Wilkie, 31 Vet. App. 58, 66 (2019), the Court held that the 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." In this case, to ensure that VA has met its duty to assist, the Board finds that remand is required. Specifically, as explained in more detail below, remand is necessary to the develop the record because there are relevant outstanding treatment records that must be requested to ensure that VA has met its duty to assist the Veteran. First, a review of the Veteran's VA treatment records discloses that during the appeal period the Veteran participated in substance abuse program and in a VA compensated work therapy (CWT) program twice. See VA Examination (April 2013). These records are not presently contained in the Veteran's file. Thus, complete VA treatment records as well as CWT records should be obtained. Any VA treatment records are within VA's constructive possession and are considered potentially relevant to the issue on appeal. Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016) (the Federal Circuit held that 38 C.F.R. § 3.159(c)(3) extends VA's duty to assist in obtaining sufficiently identified VA medical records, regardless of their relevance). Second, while on remand, VA should obtain VA treatment records that are dated from December 2011 to October 2012, as they have not been associated with the claims file. The matter is REMANDED for the following action: Obtain the Veteran's VA treatment records for the period from 2011 to 2012 (including records from Central Alabama Veterans Health Care System) and records from his VA compensated work therapy program (CWT), where he was a participant on at least two occasions. All records of psychiatric hospitalizations prior to May 2012 should also be obtained. If the requested records are not available, this should be noted in the file. M. C. WILSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. M. Pesin 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.