Citation Nr: 21031813 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 16-40 859 DATE: May 24, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to March 3, 2020 is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1969 to October 1971. This appeal originally stems from a February 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which, in relevant part, denied service connection for a back disability. The Veteran asserted his disabilities entitled him to a TDIU in the June 2015 Notice of Disagreement. A Statement of the Case (SOC) was issued in July 2016, and the Veteran appealed to the Board of Veterans' Appeals (Board) in August 2016. In January 2020 the Board reopened the claim for service connection for a back disability, remanded the claim to provide a new VA examination and medical opinion, and remanded the claim for a TDIU. The examinations and opinions were provided on March 3, 2020. In an August 2020 rating decision, the RO granted entitlement to service connection for lumbar degenerative arthritis, rotoscoliosis, and degenerative disc disease, status post lumbar fusion. The grant is effective October 9, 2014, the date VA received the most recent claim for service connection for the back disability. This represents a full grant of the benefit originally sought on appeal, and entitlement to service connection for a back disability is not before the Board. The August 2020 rating decision also awarded the Veteran entitlement to TDIU effective March 3, 2020, the date of the back examination. A Supplemental Statement of the Case denied entitlement to a TDIU prior to March 3, 2020. As the award of TDIU from March 3, 2020 did not constitute a full grant of the benefit sought, the issue of entitlement to a TDIU before March 3, 2020 remains in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). 1. Entitlement to a TDIU prior to March 3, 2020 is remanded. It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340 (a)(1), 4.15. Under the applicable criteria, a TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is a sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16 (a). Effective March 3, 2020, the rating for the service-connected back disability was increased to 20 percent, and his overall rating increased to 70 percent. With PTSD rated 50 percent, and additional service-connected disability bringing the combined rating to 70 percent, a TDIU was granted effective March 3, 2020, the date the schedular requirements for a TDIU were met. As a TDIU has already been granted from March 3, 2020, the remaining issue is whether the Veteran is entitled to a TDIU for the appeals period prior to March 3, 2020. Effective October 9, 2014, the date of the claims associated with the claim for a TDIU, the Veteran was service connected for posttraumatic stress disorder (PTSD) rated 50 percent disabling, lumbar degenerative arthritis, rotoscoliosis, and degenerative disc disease, status post lumbar fusion (back disability) rated 10 percent disabling, right and left lower extremity radiculopathy rated 10 percent disabling each, and a scar assigned a noncompensable rating. His overall disability rating was 60 percent. The Veteran does not meet the schedular requirements for a TDIU before March 3, 2020. Where the schedular requirements for a TDIU are not met, entitlement to the benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16 (b). The Board does not have the authority to assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Rating boards will refer to the Director of the Compensation Service for extraschedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16 (a). Although the Veteran does not meet the schedular criteria for a TDIU prior to March 3, 2020, there is evidence the Veteran's back disability and PTSD made him unable to secure and follow a substantially gainful occupation prior to March 3, 2020. The Veteran submitted a private November 2014 psychological evaluation by L.G., a licensed psychological associate. L.G. determined the Veteran's PTSD symptoms caused significant disturbances in all areas of his live, and that because of PTSD he was unable to maintain any job that requires extended periods of concentration, decision-making, and interaction with other people. His PTSD interfered with his ability to attend to and process information that would enable him to learn new tasks, and his hyperirritability severely compromised his ability to initiate or sustain work relationships. L.G. considered the Veteran to be totally and permanently disabled. During the evaluation the Veteran also reported that his back pain was so severe that he had to stop working. See November 25, 2014 Psychological Evaluation. We note the Veteran has since been service-connected for the back disability. In the May 2015 TDIU application, the Veteran reported that he had last worked as a security guard in 1993, that he had a high school education, and that he no longer worked because of his PTSD. The Veteran was provided a VA back conditions examination on March 3, 2020. The examiner determined the Veteran's back disability caused reduced capacity for bending, lifting, prolonged sitting, and prolonged standing. We note that this is the only contemporaneous statement from an examiner regarding the functional impact of the Veteran's back disability, and that the March 2020 back examination was the first VA back examination he had been given since July 1976. The August 2020 rating decision shows the schedular TDIU was granted in part due to the March 2020 examiner's functional impact statement. Pertinently, the rating decision also references a followup March 2020 medical opinion from L.G., wherein she made similar observations regarding the impact of the Veteran's PTSD as were made in the original November 2014 psychiatric evaluation, then determined that the Veteran's PTSD rendered him totally and permanently disabled and unemployable. The Veteran's claim for an extraschedular TDIU prior to March 3, 2020, has not been referred to the Director of Compensation Services. Under these circumstances, the case should be submitted to the Director of Compensation Service for consideration of TDIU on an extraschedular basis under 38 C.F.R. § 4.16 (b). The matters are REMANDED for the following action: 1. Refer the Veteran's claim for TDIU before March 3, 2020, to the Director of Compensation Service for consideration of TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16 (b). 2. If the benefit sought is not fully granted, furnish a supplemental statement of the case (SSOC). H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Morse 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.