Citation Nr: 21042649 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 08-25 702 DATE: July 13, 2021 REMANDED Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU) prior to April 5, 2012, is remanded. REASONS FOR REMAND The Veteran had active service from March 1970 to November 1971. He served in the Republic of Vietnam. On the most recent Board remand in February 2021, the Board remanded the TDIU claim in light of an award of service connection for hypertension, gastroesophageal reflux disease (GERD), and obstructive sleep apnea. The Board found that entitlement to a TDIU for the period prior to April 5, 2012 should be readjudicated. 1. Entitlement to a TDIU prior to April 5, 2012, is remanded. During the pendency of his initial rating for posttraumatic stress disorder (PTSD) appeal, the Veteran submitted an application for TDIU in which he advanced being unable to work since 2004 due to his service-connected PTSD. See April 2013 VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). On an April 2015 Appellate Brief, the Veteran's representative expressed that the evidence clearly and factually shows that the Veteran has been rendered unemployable due to service-connected disabilities. Total disability ratings for compensation may be assigned where the schedular rating is less than total, 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. 38 C.F.R. § 4.16(a). If, however, there is only one such disability, it shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one 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). 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(b). Therefore, if a veteran fails to meet the rating enunciated in 38 C.F.R. § 4.16(a), an extraschedular rating is for consideration where a veteran is unemployable due to service-connected disability.38 C.F.R. § 4.16(b). Prior to April 5, 2012, the Veteran did not meet the schedular criteria for TDIU. From August 27, 2007 to May 21, 2008, the Veteran was service connected for PTSD rated at 50 percent, and hypertension rated at noncompensable. From May 22, 2008 to April 4, 2012, the Veteran was service connected for PTSD rated at 50 percent, GERD rated at 10 percent, obstructive sleep apnea rated at noncompensable, hypertension rated at noncompensable, and erectile dysfunction rated at noncompensable. Accordingly, and as discussed above, the Veteran did not meet the schedular criteria for TDIU prior to April 5, 2012. The Board does not have the authority to award an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Here, the Board finds that a referral to the Director is warranted. On a June 2009 private mental capacity assessment, the Veteran was noted to have marked or serious limitation in the ability to remember locations and work-like procedures, and the ability to understand and remember detailed instructions. The Veteran was noted to have marked or serious limitation in the ability to maintain attention and concentration for extended periods and the ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances. The Veteran was noted to have marked or serious limitation in the ability to make simple work-related decisions and the ability to complete a normal workweek without interruptions from psychologically based symptoms. On his August 2009 VA examination, the examiner noted that the Veteran's PTSD symptoms were mildly impairing on his occupational life. The examiner noted that the Veteran worked as a security agent and that he worked with a lot of ex-military people. The examiner noted that the Veteran found it difficult to work with the ex-military people and it caused anxiety and anger because they often talked about war. The examiner expressed that it is estimated that those feelings caused occasional decreases in the Veteran's work efficiency or intermittent brief periods of inability to perform occupational tasks. On an April 2010 VA mental health treatment note, the Veteran expressed that he cannot work and that his nightmares have come back. In light of this evidence, and as the Board is unable to award a TDIU on an extraschedular basis in the first instance, a referral to the Director for consideration of the matter under 38 C.F.R. § 4.16(b) is warranted. (Continued on the next page) The matters are REMANDED for the following action: 1. Refer the application for a TDIU to the Director of Compensation Service for a determination as to whether the Veteran is entitled to a TDIU, to include on an extraschedular basis in accordance with the provisions of 38 C.F.R. § 4.16(b). A full statement as to the Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be provided. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.D. 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.