Citation Nr: 21040113 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 10-31 330 DATE: July 2, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU), prior to June 24, 2010, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1966 to August 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In an October 2019 decision, the Board granted TDIU from June 24, 2010 to July 18, 2016. In November 2020, the Veteran and the Secretary of VA filed a Joint Motion for Remand (Joint Motion) with the United States Court of Appeals for Veterans Claims (Court). A November 2020 Order of the Court remanded the issue to the extent that the Board did not consider or discuss whether the Veteran was entitled to TDIU prior to June 24, 2010. In April 2013, the Veteran testified at a hearing at the RO before a Veterans Law Judge (VLJ). A transcript of this hearing is associated with the claims file. The VLJ is no longer employed by the Board. In Legacy appeals such as this one, VLJs who conduct hearings must participate in making the final determination of the claim on appeal. 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. In a May 2021 letter, the Board notified the Veteran that the VLJ was no longer employed by the Board and that he had the right to another hearing. He was notified that if he did not respond within 30 days, the Board would assume that another hearing was not desired and would proceed to adjudicate the claim on appeal. In June 2021, the Veteran responded that another hearing was not desired. In January 2014, the Board expanded the appeal to include the matter of the Veteran's entitlement to a TDIU due to PTSD (consistent with Rice v. Shinseki, 22 Vet. App. 447 (2009)). 1. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. The Veteran alleges that he is unable to work due to his service-connected PTSD. See August 2014 Veteran's Application for Increased Compensation Based on Unemployability, VA Form 21-8940. For the period on appeal, prior to June 24, 2010, service connection currently is in effect for PTSD, evaluated as 30 percent disabling effective June 6, 2008 and for erectile dysfunction associated with PTSD, evaluated as noncompensable effective February 3, 2010. As noted by the parties to the joint motion, the Veteran submitted a VA Form 21-8940 (formal TDIU claim) in which he reported that he completed three years of high school and did not have any additional education. He also reported that he became too disabled to work 1999 and that he last worked full-time in 1993. A June 2012 VA treatment record documents that the Veteran was hospitalized from September 2, 2008 to November 17, 2008 due to his psychiatric symptoms, homelessness, and drug addiction. The Board notes that the Veteran does not meet the disability percentage threshold for schedular TDIU consideration prior to June 24, 2010. 38 C.F.R. §§ 4.16(a). Nevertheless, even when a Veteran does not meet the percentage standards for schedular TDIU, he may be considered for TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). The Board does not have the authority to assign extraschedular TDIU in the first instance. 38 C.F.R. § 4.16(b). Rather, the Board only may consider whether referral for extraschedular TDIU to the Director, Compensation Service ("Director"), is appropriate. The Veteran has alleged that he is unemployable due to his service-connected PTSD. He does not meet the schedular criteria for a TDIU. He only completed three years of high school education. And his career consisted of multiple short-term jobs doing manual labor or working in the service industry. The Board finds that referral to the Director for consideration of entitlement to a TDIU on an extraschedular basis is appropriate. The matter is REMANDED for the following action: 1. Refer the issue of entitlement to a TDIU on an extraschedular basis to the Director, Compensation Services, for consideration. A copy of the Director's decision should be associated with the claims file. 2. Readjudicate the appeal. Zi-Heng Zhu Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Hammad Rasul, 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.