Citation Nr: 21032280 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 19-28 908 DATE: May 26, 2021 REMANDED Entitlement to an effective date prior to June 9, 2005, for the grant of a total disability rating based on individual unemployability (TDIU), to include on an extraschedular basis is remanded. REASONS FOR REMAND The Veteran had active service from April 1966 to February 1970. In May 2020, the Board denied entitlement to an effective date prior to June 9, 2005, for the grant of TDIU, to include on an extraschedular basis. The Veteran then appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court), which granted a Joint Motion for Remand (JMR) in January 2021. In granting the motion, the Court vacated the Board's prior denial of TDIU, to include on an extraschedular basis. The JMR detailed the parties' agreement that the Board erred when it did not provide an adequate statement of reasons or bases to support its adjudication of the Veteran's entitlement of TDIU prior to June 9, 2005. More specifically, the Court noted that the Board failed to adequately address its understanding of the term "substantially gainful occupation." The Court pointed to the Veteran's assertion that he "last worked full-time in 1997 and that his work after that time was sporadic and should be considered marginal." See September 2019 VA Form 9. The Court also noted that the Board failed to adequately discuss the Veteran's educational level, prior vocational history, work experience, or relate those factors to the limitations caused by his service-connected disabilities. Additionally, the Court determined that it was unclear why the Board afforded more probative weight to the Veteran's August 2007 hearing testimony of having full-time employment until early-2004 than a March 2003 Behavioral Health Intake Assessment note, in which the Veteran reported that he was last employed in June 2002 and had over 30 jobs in 30 years. Entitlement to an effective date prior to June 9, 2005, for the grant of a total disability rating based on individual unemployability (TDIU), to include on an extraschedular basis Pursuant to the December 2020 JMR, the Board will remand the Veteran's claim for an earlier effective date for TDIU, to include on an extraschedular basis. As noted in the Board's May 2020 decision, the Veteran's claim for an increased rating for his service-connected back disability on November 22, 2002 was also potentially a claim for a TDIU. Thus, the Veteran asserts that the relevant time period on appeal for his claim of entitlement to a TDIU on an extraschedular basis is from November 22, 2002 to June 9, 2005. During this period, service connection was in effect for a mood disorder associated with lumbar strain (evaluated as 50 percent disabling beginning November 22, 2002); lumbosacral strain (evaluated as 20 percent disabling beginning March 27, 2002); tinnitus (evaluated as 10 percent disabling beginning April 18, 2001); and hearing loss (evaluated as 0 percent disabling beginning March 27, 2002). His combined rating for compensation was 60 percent from November 22, 2002. Where the percentage requirements for TDIU are not met, a total disability rating may nevertheless be assigned on an extraschedular basis when the Veteran is unable to secure or follow a substantially gainful occupation as a result of his or her service-connected disability or disabilities. 38 C.F.R. § 4.16(b). The Board is precluded from assigning a TDIU rating on an extraschedular basis in the first instance. Instead, the Board must refer any claim that meets the criteria for referral for consideration of entitlement to a TDIU on an extraschedular basis to the Director of Compensation Service. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001). A March 2003 treatment record reflects that the Veteran stated that his disabilities prevented gainful employment. A June 2006 General Psychiatric Examination with Independent Medical Opinion report reveals that the Veteran's psychiatric symptoms affected his work functioning and that he had not worked for the last two years. On his January 2014 application for TDIU, the Veteran reported that he last worked on a full-time basis in 1997 and that his depression prevented him from securing or following any substantially gainful occupation. In the May 2020 decision, the Board declined to refer the Veteran's claim for TDIU for extraschedular consideration, finding that the most probative evidence of record established that the Veteran's service-connected disabilities did not preclude substantially gainful employment prior to June 9, 2005. In light of the Court's decision, the Board finds that a remand is necessary to refer the Veteran's claim for TDIU to the Director of Compensation Service for extraschedular consideration for the period from November 22, 2002 to June 9, 2005. The matters are REMANDED for the following action: 1. Pursuant to the provisions of 38 C.F.R. § 4.16(b), refer the Veteran's claim for TDIU to the Director or Compensation Service for consideration of TDIU on an extraschedular basis. 2. After the above is completed, if the claim is still denied, issue the Veteran and his representative a Supplemental Statement of the Case. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Hanson, 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.