Citation Nr: 22016146 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 16-43 502 DATE: March 21, 2022 ORDER Entitlement to an effective date of June 29, 2007, but no earlier, for the grant of service connection for major depressive disorder (MDD) is granted. Entitlement to an initial disability rating of 70 percent, but no higher, from June 14, 2016, to May 29, 2018, for major depressive disorder (MDD) and posttraumatic stress disorder (PTSD), is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) from June 14, 2016, to May 29, 2018, is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) prior to June 14, 2016, is remanded. FINDINGS OF FACT 1. VA received the Veteran's claim for entitlement to service connection for depressive disorder on June 29, 2007. 2. New and material evidence was received into the record in December 2009 regarding the Veteran's claim to service connection for depressive disorder, within the expiration of the appeal period of the September 2009 rating decision denying service connection for depressive disorder. 3. From June 14, 2016, to May 29, 2018, the Veteran's acquired psychiatric disorder most closely approximated occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. 4. From June 14, 2016, to May 29, 2018, the probative evidence of record demonstrates the Veteran was unable to obtain gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date of June 29, 2007, but no earlier, for the grant of service connection for MDD have been met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. §§ 3.102, 3.156, 3.400. 2. The criteria for entitlement to an initial disability rating of 70 percent, but no higher, from June 14, 2016, to May 29, 2018, for MDD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.125, 4.126, 4.130, Diagnostic Codes (DCs) 9411, 9434. 3. The criteria for entitlement to a TDIU from June 14, 2016, to May 29, 2018, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 3.1010, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army on active duty from January 1967 to November 1967. The issues come before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in November 2019. A transcript of the hearing has been included with the record. In February 2020, the Board denied the Veteran's claim of entitlement to an earlier effective date for the grant of service connection for MDD and an increased initial disability rating for acquired psychiatric disability. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In February 2021, the Court granted a Joint Motion for Partial Remand (JMPR). The Court found the Board failed to provide adequate reasons and bases for its denial of the Veteran's claims. Specifically, the Court found the Board failed to address relevant evidence favorable to the Veteran in determining that the Veteran's mental health symptoms were not indicative of social and occupational impairment warranting greater than a 50 percent rating from June 14, 2016, to May 29, 2018; and the Board failed to address evidence of record relevant to the Veteran's claim of service connection for MDD in December 2009. Additionally, the Court found the Board failed to adjudicate the explicitly raised issue of entitlement to a TDIU for the period prior to May 29, 2018. Pursuant to the JMPR, the Court vacated and remanded the matter to the Board. 1. Entitlement to an effective date of June 29, 2007, but no earlier, for the grant of service connection for major depressive disorder (MDD) The Veteran contends that he is entitled to an earlier effective date for the grant of service connection for MDD, prior to August 8, 2012. The Veteran contends that his original date of claim was in June 2007. Generally, the effective date for the grant of service connection for a disease or injury is the day following separation from active duty or the date entitlement arose if a claim is received within one year after separation from service. Otherwise, the effective date is the date of receipt of claim, or date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board without consideration in that decision, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). VA medical records received into the record in December 2009 revealed the Veteran called the VA suicide hotline with complaints of depression. The December 2009 VA record notes the VA psychologist reported the Veteran's chronic pain, chronic medical problems, and unemployment/financial loss as suicidal risk factors present. Records within the constructive receipt of VA, in the post-decision context, must be evaluated under the same framework applied to records generated prior to a decision where the record (1) was generated by the VA or was submitted to the VA and (2) can reasonably be expected to be connected to the veteran's claim. Lang v. Wilkie, 971 F.3d 1348, 1355-56 (Fed. Cir. 2020). Additionally, medical records created by a VA medical center as a result of treatment of a specific veteran are necessarily received by the VA adjudicator of that veteran's claim, because all such records can reasonably be expected to be connected to the veteran's claim. Id. New and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). In the present case, VA received the Veteran's claim for service connection on June 29, 2007. In a September 2009 rating decision, the RO denied the Veteran's claim of entitlement to service connection for depression as secondary to the Veteran's service-connected left shoulder disability. The December 2009 VA medical treatment record identifying the Veteran's chronic pain as a suicide risk is new and material. Therefore, the September 2009 rating decision did not become final regarding the Veteran's claim to service connection for his depressive disorder. Thus, the effective date for the grant of the award of service connection for MDD is fixed in accordance with the date of receipt of the initial claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. The Veteran stated in his initial June 29, 2007, claim of service connection for depression, that he sometimes became depressed due to his constant discomfort. A review of the record reveals the Veteran's entitlement to service connection for MDD did not arise following his June 2007 claim. Accordingly, the Board finds that entitlement to an effective date of June 29, 2007, but no earlier, for the grant of service connection for MDD is warranted. 2. Entitlement to an initial disability rating of 70 percent, but no higher, from June 14, 2016, to May 29, 2018, for major depressive disorder (MDD) and posttraumatic stress disorder (PTSD) The Veteran contends that he suffers from symptoms of an acquired psychiatric disorder warranting an initial disability rating greater than 50 percent, from June 14, 2016, to May 29, 2018. The February 2020 Board decision denied entitlement to an initial rating in excess of 30 percent for the period prior to June 14, 2016, and a rating in excess of 70 percent for the period since May 29, 2018, for MDD and PTSD. The Veteran did not appeal the Board's evaluations for the periods prior to June 14, 2016, or since May 29, 2018. Accordingly, pursuant to the Court's remand, the period on appeal for the Veteran's initial increased rating claim is June 14, 2016, to May 29, 2018. Increased Rating VA has adopted the Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 3.321; see generally, 38 C.F.R. Part IV. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. The schedule recognizes that disability from distinct injuries or diseases may overlap. See 38 C.F.R. § 4.14. However, the evaluation of the same disability or its manifestations under various diagnoses, which is known as pyramiding, is to be avoided. Id. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. When an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). In the present case, the Veteran's psychiatric condition is rated as 50 percent from June 14, 2016, to May 29, 2018, under hyphenated DC 9411-9434 of the General Rating Formula for Mental Disorders (General Rating Formula). 38 C.F.R. § 4.130, DC 9434. Under the General Rating Formula, a 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and/or difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130. A 70 percent rating is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and/or inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and/or memory loss for names of close relatives, own occupation, or own name). Id. When determining the appropriate disability evaluation to assign for a mental disorder, the Board must make a finding as to how psychological symptoms impact a veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). The General Rating Formula criteria are associated with objectively observable symptomatology. The plain language of the regulation makes it clear that the veteran's impairment must be "due to" those symptoms. Thus, a Veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. Turning to the evidence of record, the Veteran has a documented history of symptoms of MDD and PTSD, including anxiety, social isolation, irritability, and anger. The Veteran underwent a VA examination in June 2016. The VA psychiatrist diagnosed the Veteran's psychiatric disorder as PTSD and MDD. The VA psychiatrist noted the Veteran's depressive symptoms included depressed mood; low energy and motivation; fatigue; decreased feelings of hope and worth; decreased appetite; isolation; less interest in activities; and problems with irritability, concentration, and sleep. The VA examiner identified the Veteran's symptoms of PTSD as irritable behavior and angry outbursts (with little or no provocation) typically expressed as verbal or physical aggression toward people or objects; hypervigilance; exaggerated startle response; poor concentration; and sleep disturbances. For VA rating purposes the VA examiner noted the Veteran's PTSD symptoms as depressed mood; anxiety; chronic sleep impairment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and difficulty in adapting to stressful circumstances, including work or worklike setting. The VA examination noted the Veteran's disability resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The Veteran noted that he was married for the fourth time. The Veteran reported his relationship with his wife was good. The Veteran noted he had six children and over 20 grandchildren. The Veteran described his relationships with his three older children and grandchildren as poor. The Veteran noted he had a good relationship with his younger children. The Veteran reported that he had no close or casual friends, but noted he was close with his siblings. The Veteran reported regularly attending church and volunteering in his community. The examination reported the Veteran last worked 15 years prior. The Veteran noted that he stopped working as a painter due to physical problems; however, the Veteran reported experiencing irritability on the job. The Veteran reported a history of mental health treatment for irritability and anxiety. The VA examiner noted the Veteran's mood was dysphoric, and his affect during the session was congruent. The Veteran was casually dressed with adequate attention to grooming. There was no indication of the Veteran's impairment of thought process or communication. The VA examiner noted no evidence of auditory or visual hallucinations. The Veteran denied current suicidal and homicidal ideation. The record contains the Veteran's July 2016 VA Mental Health Diagnostic Study Note. The Veteran endorsed symptoms of severe anxiety. The Veteran noted that he felt symptoms of depression and problems with concentration and social interactions nearly every day. The Veteran noted that he felt distant or cut off from other people. The Veteran reported that he experienced moderate symptoms of irritable behavior, angry outbursts, or acting aggressively. In August 2016, the Veteran's wife submitted a statement in support of the Veteran's claim. The Veteran's wife noted the Veteran's sleep disturbances and paranoia while being home alone. The Veteran's wife stated that she seldom left the Veteran home alone. The Veteran's wife reported the Veteran paid very little attention to his hygiene and noted that the Veteran became hostile when asked to shower. The Veteran's wife noted that the Veteran displayed hoarding tendencies. The Veteran's wife stated that the Veteran became angry if she touched the Veteran's collected items. Additionally, the Veteran's wife noted that the Veteran routinely and methodically inspected every item. The Veteran's wife reported the Veteran did not engage with anyone outside of his close family members. The Veteran's wife described the Veteran as unreasonably jealous. The Veteran's spouse recalled instances of verbal abuse and threats of violence. She noted the Veteran was easily agitated, and that it was frightening to witness the Veteran become upset. The Veteran's wife noted the Veteran's family remained distant and the Veteran's relationships with his children were strained. The Veteran's wife reported their adult daughter described the Veteran as a bully. After a review of the medical and lay evidence of record, the Board finds that, during the period on appeal, from June 14, 2016, to May 29, 2018, the Veteran's PTSD more nearly approximated occupational and social impairment of such severity as to warrant a 70 percent disability rating, but no higher. See 38 C.F.R. § 4.130. In this regard, the Board acknowledges that in evaluating the severity of the Veteran's psychiatric disorder, "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating" under the general criteria for rating mental disorders. Vazquez-Claudio, 713 F.3d at 117. However, not only is the evaluation "symptom-driven," but it is also based on consideration of the symptom's effects on the Veteran's level of impairment. Vazquez-Claudio, 713 F.3d at 117; Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002). Accordingly, VA must engage in a holistic analysis of the evidence of record, including the Veteran's competent lay statements regarding certain observable medical issues and symptomatology, and assign an evaluation that most nearly approximates that level of occupational and social impairment. Bankhead v. Shulkin, 29 Vet. App. 10, (2017); see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Overall, the Board finds that the evidence suggests that the Veteran's psychiatric disability resulted in deficiencies in most areas of his life. Specifically, the Veteran's psychiatric disability manifested as an inability to establish and maintain effective social relationships. Areas of the Veteran's judgment, thinking, and mood were significantly impaired by his psychiatric disability as well. The Veteran was observed to have an anxious mood, and the Veteran reported that he experienced daily depression. Additionally, the Veteran reported impairment in his mood characterized by a decreased motivation and symptoms of neglect of personal appearance and hygiene. The Board also notes evidence of impaired judgment, as demonstrated by the Veteran's reported anger outbursts and issues with impulse control, such as unprovoked irritability with observed threats of violence. Further, the record demonstrates the Veteran had difficulty in adapting to stressful circumstances with social settings. Finally, the Veteran displayed obsessional rituals which strained his relationship with his spouse. The evidence shows that the Veteran endorsed multiple symptoms either specifically contemplated by, or approximate to the symptoms set forth in, the 70 percent criteria of the General Rating Formula, resulting in deficiencies in most areas. In finding that a 70 percent rating is warranted for the pendency of the appeal, the Board recognizes that although there was some fluctuation in the nature and severity of the Veteran's symptoms, and symptoms associated with lower disability ratings, overall, the evidence of record demonstrates that the type and extent, frequency and severity of the Veteran's symptoms have been relatively consistent from June 14, 2016, to May 29, 2018, and more nearly approximates the criteria required for a 70 percent disability rating. 38 C.F.R. § 4.7. Thus, resolving reasonable doubt in favor of the Veteran, the Board finds that the evidence of record supports an initial disability rating of 70 percent from June 14, 2016, to May 29, 2018. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.130. The Board finds that the evidence of record does not support a disability rating of 100 percent for the Veteran's psychiatric disability at any point during the period on appeal. The Board has also considered whether, at any time during the period on appeal, the Veteran's symptoms of PTSD more nearly approximated total social and occupational impairment, such that a 100 percent schedular rating is warranted. While the Veteran was unemployed during the period on appeal, the evidence does not suggest that the Veteran experienced total social impairment. From June 14, 2016, to May 29, 2018, the record demonstrates the Veteran reported positive familial relationships with his wife and younger children. Additionally, the evidence of record demonstrates the Veteran was an active member of his church. The Board acknowledges the August 2016 statement provided by the Veteran's wife reported the Veteran had troubled relationships with his family and congregation at church. However, the Board notes the Veteran's reports of his interactions with his family and his volunteer work indicate the Veteran's psychiatric disorders did not render him totally socially impaired. The Board notes the evidence of record reporting the Veteran's symptoms of impaired impulse control; however, the Veteran never expressed suicidal or homicidal ideation during the period on appeal, or demonstrated that he was a persistent danger of hurting himself or others. Additionally, the evidence of the Veteran's symptoms of MDD or PTSD did not show the Veteran's mental health disorder affected the Veteran's activities of daily living. Further, from June 14, 2016, to May 29, 2018, the record does not demonstrate the Veteran experienced symptoms of gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. Thus, a 100 percent evaluation is not warranted at any point during the pendency of the appeal period under consideration. See 38 C.F.R. § 4.130. In reaching this conclusion, the Board considered the doctrine of reasonable doubt; however, as the evidence persuasively is against a rating in excess of 70 percent disabling, the doctrine does not apply. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). 3. Entitlement to a total disability rating based on individual unemployability (TDIU) from June 14, 2016, to May 29, 2018 The Veteran contends that his service-connected disabilities rendered him unemployable prior to May 29, 2018. Entitlement to a TDIU, including on an extraschedular basis, has been raised in the context of the Veteran's increased rating claims. In an October 2018 decision, the RO granted the Veteran's claim for TDIU effective May 29, 2018, noted as the date the Veteran met the schedular requirements for this benefit. As the grant of TDIU does not amount to a full grant in benefits for the entirety of the period on appeal, the Veteran seeks TDIU benefits prior to May 29, 2018. See AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Rice v. Shinseki, 22 Vet. App. 447 453-54 (2009). The Veteran contends that his service-connected disabilities, to include MDD and PTSD, left shoulder disability, and residuals from left eye injury, have rendered him unable to obtain and maintain substantially gainful employment. As the Board granted an increased initial rating for the Veteran's claim for a MDD and PTSD from June 14, 2016, to May 29, 2018, the Veteran now meets the necessary schedular rating criteria under 38 C.F.R. § 4.16(a) since June 14, 2016, as the Veteran has a 70 percent rating for his service-connected acquired psychiatric condition, 20 percent rating for left shoulder disability, and 10 percent rating for glaucoma residual of left eye injury. Therefore, the issue of entitlement to TDIU, from June 14, 2016, to May 29, 2018, turns on whether the Veteran's service-connected disabilities impair him from securing and maintaining substantially gainful employment. Here, the evidence of record supports such a finding. The evidence of record shows that the Veteran completed his high school education. After leaving service, the Veteran reported working as a painter doing mural work. In the August 2018 Veteran's Application for Increased Compensation Based on Unemployability, the Veteran noted that he last worked full-time in 2003 as a self-employed painter. The Veteran submitted a signed declaration in August 2021, in which the Veteran stated that the symptoms of his psychiatric disorder impacted his ability to get up and go to work. Additionally, the Veteran reported that his left shoulder disability made it difficult to perform physical tasks, including lifting a paint brush and other objects, climbing a ladder, and mixing paint. The record contains the Veteran's November 2021 private TDIU Vocational Assessment Report. Following a review of the Veteran's claims file, the private vocational expert concluded that the Veteran's service-connected psychiatric condition and left shoulder disability, have at least as likely as not rendered the Veteran unable to secure and follow substantially gainful employment, regardless of skill or exertional level, since at least June 2007. The private vocational expert cited information from the United States Department of Labor, which noted 92 percent of all jobs across all exertional levels require frequent use of the hands. Additionally, the private assessment noted most office positions require fine manipulation and gross dexterity for tasks, such as typing, writing, and operating a phone. The private vocational expert provided the opinion that due to the Veteran's left shoulder disability he is at least as likely as not unable to consistently utilize his left upper extremity for reaching in all directions while performing vocational tasks. These symptoms have prevented him from attending to a variety of work tasks that require the ability to perform reaching, lifting, carrying, and repetitive motion with the left upper extremity, as is required in most positions, such as assembling products, sorting files, typing, or computer work. Additionally, the vocational expert stated that, considering the Veteran's education and work history, due to his service-connected MDD with PTSD and associated limitations in sustaining concentration for extended periods of time, he is at least as likely as not unable to apply any transferable skills he acquired throughout his vocational history as a painter to alternative tasks. Further, the private vocational expert opined that the Veteran's symptoms and limitations associated with the Veteran's psychiatric condition, including social isolation, irritability, anger, and depression, would not be tolerated by employers, and would at least as likely as not contribute to his inability to secure and follow substantially gainful employment. The Board finds the evidence of record as a whole demonstrates the Veteran's service-connected disabilities prevent him from securing and maintaining substantial employment since June 14, 2016. The November 2021 private vocational assessment is probative evidence that the Veteran's service-connected conditions caused impaired concentration and social isolation, and an inability to sustain the full range of sedentary physical demands on a consistent and reliable basis required to perform unskilled non-physically demanding occupations, for which the Veteran is qualified. The private vocational expert provided a definitive opinion supported by a fully articulated rationale with citations to the medical evidence of record. See generally Prejean v. West, 13 Vet. App. 444 (2000); see also Guerrieri v. Brown, 4 Vet. App. 467 (1993). The Board recognizes the Veteran's VA examinations contained functional assessments of the Veteran's occupational limitations from his service-connected disabilities, which did not find the Veteran to be totally unemployable. However, the November 2021 private vocational assessment, when viewed with the Veteran's competent lay evidence of his symptomatology and work history, puts the evidence in at least relative equipoise on this matter. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, by law the Board must resolve all reasonable doubt in favor of the Veteran. See 38 U.S.C. §§ 1154(b); 5107; 38 C.F.R. § 3.102. Thus, the benefit of the doubt must be resolved in favor of the Veteran and entitlement to TDIU since June 14, 2016, is warranted. REASONS FOR REMAND 1. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to June 14, 2016, is remanded. The Veteran contends that his service-connected disabilities as a whole, prevented him from securing or continuing gainful employment, prior to June 14, 2016. The Veteran, however, does not meet the criteria for consideration of entitlement to TDIU on a schedular basis prior to June 14, 2016. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran has a 30 percent rating for his service-connected major depressive disorder prior to June 14, 2016, and 20 percent rating for left shoulder disability, and 10 percent rating for glaucoma residual of left eye injury. Nevertheless, an extraschedular TDIU may be assigned in the case of a veteran who fails to meet the percentage requirements but who is unemployable by reason of service-connected disability. 38 C.F.R. § 4.16(b). If a Veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), rating boards should refer to the Director, Compensation and Pension Service for extra-schedular consideration all cases where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b); Bowling v. Principi, 15 Vet. App. 1, 10 (2001); Fanning v. Brown, 4 Vet. App. 225 (1993). Therefore, an extraschedular rating may be considered if the evidence of record shows the Veteran is unemployable due to a service-connected disability. 38 C.F.R. § 4.16(b). As discussed above, the Veteran submitted a private vocational opinion in November 2021. The private vocational expert provided the opinion that the Veteran's service-connected psychiatric condition and left shoulder disability, have at least as likely as not rendered the Veteran unable to secure and follow substantially gainful employment, regardless of skill or exertional level, since at least June 2007. In light of the above, the evidence of record demonstrates within a reasonable possibility that the Veteran may have been unable to secure and follow a substantially gainful occupation due to service-connected disabilities, and referral to the Director, Compensation and Pension Service for extra-schedular consideration of the Veteran's TDIU claim prior to June 14, 2016, is appropriate. 38 C.F.R. § 4.16(b). As the Board is precluded from awarding TDIU benefits under 38 C.F.R. § 4.16(b) in the first instance, remand is required for referral for extra-schedular consideration. Bowling, 15 Vet. App. at 10. The matters are REMANDED for the following action: Refer the Veteran's claim for TDIU prior to June 14, 2016, to VA's Director of Compensation Service for extraschedular consideration. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.V. Bona, Associate 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.