Citation Nr: 21031626 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 15-20 138 DATE: May 24, 2021 REMANDED An effective date prior to December 4, 2014 for a total disability rating based on individual unemployability (TDIU). REASONS FOR REMAND The Veteran served on active duty from April 2000 to November 2002. The case is on appeal from a May 2015 rating decision. In December 2020, the Board granted service connection for a psychiatric disorder and obstructive sleep apnea and denied service connection for a left shoulder disability. The issue of a TDIU was remanded. By rating decision in March 2021, a TDIU was granted, effective December 4, 2014. As such, the issue is recharacterized as reflected on the title page. A total disability rating based on individual unemployability (TDIU), prior to December 4, 2014. The evidence reflects that the Veteran has been unemployed prior to December 4, 2014. See January 2013 VA FORM 21-8940. However, prior to December 4, 2014, the Veteran does not meet the schedular criteria for a TDIU. As such, consideration of whether an extraschedular TDIU is warranted prior to December 4, 2014, must be made pursuant to 38 C.F.R. § 4.16(b). Although the Board does not have the authority to assign an extraschedular TDIU in the first instance, it can decide whether a claim should be referred to the Director, Compensation Service. See Wages v. McDonald, 27 Vet. App. 233 (2015); Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: The veteran's history, education, skill, and training; Whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. 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 Whether the veteran has the mental ability to perform the activities required by the occupation at issue. 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 work place stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). Prior to December 4, 2014, the Veteran's psychiatric disorder and sleep apnea were each rated at 30 percent. The March 2015 VA FORM 21-8940 reflects the Veteran's report of having last worked full time in March 2002 and having become too disabled work in March 2006 due to a back disorder and his service-connected psychiatric disorder. In addition, a September 2011 State determination reflects temporary disability due to the Veteran's psychiatric disorders precluding gainful employment from June 2011 to June 2012. In addition, a December 2013 psychological evaluation reflecting that the Veteran's ability to get along with coworkers and supervisors was poor notes that he had last been employed in 2008 or 2009, until incarcerated. See May 2015 Medical Treatment Records Furnished by SSA. Further, a February 2015 VA letter notes that the Veteran had had psychiatric treatment on 25 occasions since September 3, 2013, including two inpatient admissions. See May 2015 Medical Treatment Records Furnished by SSA. The opinion was that the Veteran was unable to work as his symptoms would prevent him from following directions, completing tasks, and interacting with coworkers in an appropriate manner. Additionally, VA treatment records dated prior to December 4, 2014, reflect complaints of sleeping only four hours per night and difficulty concentrating. See May 2015 Medical Treatment Records Furnished by SSA. Further, VA treatment records in September 2013 note excessive daytime sleepiness. In addition, the record reflects that the Veteran's psychiatric medications aggravate his obstructive sleep apnea. See November 2018 Correspondence; February 2020 VA opinion. Although the Veteran's service-connected disabilities did not meet the schedular criteria for a TDIU prior to December 4, 2014 under 38 C.F.R. § 4.16(a), the evidence is at least in equipoise to support that he was still unemployable by reason of the combined effect of his service-connected disabilities prior to December 4, 2014. As noted, the Board is prohibited from granting an award of a TDIU under 38 C.F.R. § 4.16(b) in the first instance. See Wages, 27 Vet. App. at 233 (the Board is authorized to award extraschedular TDIU after obtaining the Director's decision). Therefore, the RO must first refer the claim for a TDIU on an extraschedular basis to the Director to determine whether the Veteran is entitled to an extraschedular TDIU prior to December 4, 2014, under 38 C.F.R. § 4.16(b). The matter is REMANDED for the following action: In accordance with 38 C.F.R. § 4.16(b), refer the present claim to the Director, Compensation Service, in compliance with the reasons and bases set forth above, for consideration of a TDIU prior to December 4, 2014, on an extraschedular basis. Z. SAHRAIE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Taylor 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.