Citation Nr: 21030605 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 15-35 383 DATE: May 19, 2021 REMANDED Entitlement to an effective date earlier than September 19, 2019 for the award of a total disability rating based on individual unemployability (TDIU) on an extraschedular basis is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from May 1976 to August 1977. A Board hearing was held before the undersigned Veterans Law Judge in October 2020, and a transcript of the hearing is of record. Historically, the Veteran filed a claim for entitlement to service connection for posttraumatic stress disorder (PTSD) and severe depression in September 2011. See September 2011 VA Form 21-526. Based on correspondence received by VA in October 2011, the Veteran's service connection claim for PTSD and severe depression was amended by the agency of original jurisdiction (AOJ) to include a claim for entitlement to a TDIU. See November 2011 VA notification letter; see also December 2011 VA Form 21-8940. The Board remanded the Veteran's claim for entitlement to service connection for a psychiatric disorder and entitlement to a TDIU for additional development in September 2018. In a February 2021 decision, the Board granted service connection for an acquired psychiatric disorder (to include PTSD), and remanded the issue of entitlement to a TDIU as inextricably intertwined with the initial evaluation to be assigned by the AOJ for the Veteran's service-connected psychiatric disorder. In a February 2021 rating decision, the Veteran was assigned a 50 percent evaluation for his service-connected PTSD from September 23, 2011, and a 70 percent evaluation from September 19, 2019 (with a temporary total disability rating under 38 C.F.R. § 4.29 from November 2020 to January 2021). Additionally, the Veteran was awarded entitlement to a TDIU from September 19, 2019, the date he met the schedular requirements for a TDIU based on the assignment of a 70 percent evaluation for PTSD. See February 2021 supplemental statement of the case. Prior to September 19, 2019, the Veteran is service-connected for a residual scar of the right forearm with a noncompensable evaluation, and PTSD with an evaluation of 50 percent. While the Veteran does not meet the minimum criteria for consideration of a schedular TDIU prior to September 19, 2019, in exceptional cases, the claim for a TDIU may be considered on an extraschedular basis. See 38 C.F.R. § 4.16(a), (b). However, the Board is prohibited from assigning a TDIU on an extraschedular basis in the first instance without ensuring that the claim is referred to VA's Director of Compensation for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b). Wages v. McDonald, 27 Vet. App. 233 (2015). In consideration of the Veteran's claim for entitlement to a TDIU prior to September 19, 2019, there is evidence that suggests the Veteran may have been limited from securing and maintaining gainful employment due to his service-connected psychiatric disorder, to include PTSD. The Veteran reported he was last employed in a substantially gainful occupation in 2004 or 2005, and that he became too disabled to work, in part, due to his psychiatric disorder, which has since been service-connected. In December 2011 psychiatric evaluation associated with Social Security Administration records the provider indicated the Veteran's psychiatric disorder caused clinically significant impairment in the Veteran's ability to function on the job. See December 2011 New Patient Psychiatric Evaluation. In a January 2013 C.C.I. individual counseling session, the provider indicated the Veteran would not be able to maintain a full-time job due to his inability to manage his stress and impulse control. In light of the above, the Board finds remand is necessary for referral to VA's Director of Compensation for consideration of an extraschedular TDIU under 38 C.F.R. § 4.16(b). The matters are REMANDED for the following action: Refer the Veteran's TDIU claim to the Director of Compensation Services for consideration on an extraschedular basis for the period on appeal prior to September 19, 2019. Then, readjudicate the appeal. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Mask, 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.