Citation Nr: 21031211 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 18-18 402 DATE: May 20, 2021 REMANDED Entitlement to a TDIU for the period from October 1, 2011 through April 11, 2017 is remanded. REASONS FOR REMAND The Veteran, who is the appellant, had active service from July 1959 to January 1969. At the outset, the Board will review the procedural history of the instant matter. In August 2008, VA received a claim for an increased disability rating for service-connected bilateral hearing loss. An increased disability rating was denied in a September 2009 Department of Veterans Affairs (VA) Regional Office (RO) rating decision, and the Veteran subsequently appealed. Most recently the hearing loss rating issue was remanded in a November 2018 Board of Veterans' Appeals (Board) decision for additional development. Following the issuance of a supplemental statement of the case (SSOC) in September 2020, the Veteran opted the hearing loss rating issue into the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). As such, the hearing loss rating issue will be addressed in a separate AMA-compliant Board decision. On April 12, 2017, VA received the Veteran's claim for an increased disability rating for the service-connected posttraumatic stress disorder (PTSD). The claim was denied in a May 2017 RO rating decision, and the Veteran subsequently appealed the denial. In December 2018, while both the hearing loss and PTSD rating issues were pending, VA received a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. Per the VA Form 21-8940, the Veteran advanced being unemployable due to service-connected PTSD and hearing loss. A subsequently received March 2019 VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits, reported that the Veteran last worked on September 30, 2011. In a later issued June 2020 AMA rating decision, the RO made a formal finding that the Veteran last worked on September 30, 2011. Following receipt of the TDIU claim, the RO denied a TDIU in an April 2019 rating decision. Less than two months later, in June 2019, the Board issued a decision granting an increased disability rating of 70 percent for the service-connected PTSD for the increased rating period on appeal (from April 12, 2017). At that time, the Board found that the issue of entitlement to a TDIU was not ripe for adjudication, and the issue was not considered by the Board in that decision. A rating decision effectuating the Board grant was issued by the RO in July 2019. After additional development was completed, in July 2020 the RO issued a rating decision granting a TDIU from April 12, 2017, the date of PTSD rating increase. Also in July 2020, the United States Court of Appeals for Veterans Claims (Court) issued an Order granting a Joint Motion for Remand (JMR). Per the JMR, the parties agreed that, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), the Board had not provided adequate reasons and bases for its finding that the issue of entitlement to a TDIU was not before the Board at the time of its June 2019 decision. The Board agrees that, pursuant to Rice, the issue of entitlement to a TDIU was before it at the time of its June 2019 decision granting an increased disability rating of 70 percent for the service-connected PTSD. Further, as the hearing loss rating issue remained pending at the time of the June 2019 Board decision, the Board should have found that the TDIU issue was part of the hearing loss rating issue on appeal, which dated back to an August 2008 claim. For the above reasons, at the time of the June 2019 Board decision, pursuant to Rice, the question before the Board was entitlement to a TDIU from October 1, 2011 (the Veteran's first day of unemployment after being forced to retire from full time substantially gainful employment). As the RO granted entitlement to a TDIU from April 12, 2017 in a July 2020 rating decision, the remaining issue before the Board is entitlement to a TDIU for the period from October 1, 2011 through April 11, 2017. TDIU From October 1, 2011 through April 11, 2017. TDIU may be assigned 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. The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue will be addressed in both instances. 38 C.F.R. § 4.16(a), (b). 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, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). If a veteran's disabilities do not meet the objective combined rating percentage criteria of 38 C.F.R. § 4.16(a), it then becomes necessary to consider whether the criteria for referral for consideration are met under § 4.16(b). Submission to the Director, Compensation and Pension Service, for adjudication under § 4.16(b) is warranted in all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). For the period from October 1, 2011 through April 11, 2017, the Veteran's service connected disabilities did not meet the objective combined rating percentage criteria of 38 C.F.R. § 4.16(a) for TDIU eligibility. Nonetheless, per the March 2019 VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits, the evidence suggests that the Veteran was forced to retire from full-time substantially gainful employment on September 30, 2011 due to service-connected PTSD and hearing loss symptoms. Further, per a February 2019 private psychologist's opinion, the symptoms warranting a 70 percent disability rating for PTSD had been present since September 30, 2011, and the Veteran had been unable to function in any job in any capacity since that time. Such evidence supports that referral to the Director, Compensation and Pension Service, for TDIU consideration under 38 C.F.R. § 4.16(b) is warranted for the rating period from October 1, 2011 through April 11, 2017. The matter is REMANDED for the following action: Refer the issue of a TDIU from October 1, 2011 through April 11, 2017 to the VA Director of Compensation and Pension Service for adjudication of entitlement to a TDIU under 38 C.F.R. § 4.16(b). J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Blowers, 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.