Citation Nr: 18160350
Decision Date: 12/26/18	Archive Date: 12/26/18

DOCKET NO. 17-05 438
DATE:	December 26, 2018
REMANDED
Entitlement to an effective date earlier than January 7, 2011 for the award of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), to include on an extraschedular basis, is remanded.  
REASONS FOR REMAND
The Veteran served on active duty in the United States Army from July 1976 to January 1982 and in the United States Air Force from November 1990 to February 1991.  This matter is on appeal from a June 2012 rating decision.   
Entitlement to an effective date earlier than January 7, 2011 for the award of a TDIU, to include on an extraschedular basis, is remanded.  
The Board sincerely regrets the additional delay, but finds it necessary for the proper adjudication of the Veteran’s claim.
In a June 2016 rating decision, the Veteran was awarded a TDIU effective January 7, 2011, which was not only the date of the Veteran’s claim, but also the date on which the Veteran first met the schedular criteria for a grant of this benefit.  The Veteran appealed the June 2016 rating decision and the assigned effective date for his award of a TDIU.  
Generally, total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation.  38 C.F.R. § 3.340.  When the schedular rating is less than total, a total disability rating may be assigned when the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher.  38 C.F.R. § 4.16(a).
Prior to January 7, 2011, the Veteran was service-connected for PTSD (50 percent from February 11, 2009), tinnitus (10 percent from February 17, 2000), tendinopathy and degenerative joint disease of the right shoulder (10 percent from November 8, 1995), and post-operative residuals of a fractured right ankle (10 percent from May 1, 1983).  The Veteran’s combined disability rating from February 11, 2009 was 60 percent.  See 38 C.F.R. § 4.25, Combined Ratings Table.  Thus, he was not eligible for a TDIU on a schedular basis under the requirements of 38 C.F.R. § 4.16(a). 
However, the Board notes that when the percentage requirements of 38 C.F.R. § 4.16(a) are not met, entitlement to a TDIU 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, and consideration is given to the Veteran’s background including his or her employment and educational history.  38 C.F.R. § 4.16(b).  The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance.  Bowling v. Principi, 15 Vet. App. 1 (2001).  Instead, where a veteran does not meet the schedular requirements, the Board may only refer the claim to the Director of Compensation Service for extraschedular consideration.  Id. 
In this case, the Veteran accepts that he did not meet the schedular requirements for a TDIU prior to January 7, 2011.  However, the Veteran argues that he should be granted an effective date prior to January 7, 2011 on an extraschedular basis because he was unable to secure and follow a substantially gainful occupation due to his service-connected disabilities prior to that date.  The Veteran specifically contends that he should be granted an effective date to February 11, 2009, which is the date he was granted service connection for posttraumatic stress disorder (PTSD) because he was unemployable as of this date due to his PTSD.     
In consideration of the arguments put forth by the Veteran, and following a thorough review of the pertinent evidence of record, the Board finds that referral to the Director of Compensation for extraschedular consideration is appropriate.    
In this regard, the Board notes that the claims file contains January 2010 and October 2010 letters from the Veteran’s VA psychiatrist in which the doctor states that the Veteran’s “ability to function in a work-like setting is nil” and “he is permanently and completely disabled” due to his PTSD.  An earlier letter, from May 2009, details the severity of the Veteran’s PTSD with the VA psychiatrist remarking that the Veteran “is quite limited in his ability to function… the prognosis for this veteran is poor.”      
The Veteran underwent a vocational assessment in May 2018.  After interviewing the Veteran and reviewing his entire claims file, including his complete medical records, the vocational consultant concluded that it is more likely than not that the Veteran would have been unable to meet basic work requirements or secure and follow substantially gainful employment, even at a sedentary level, from February 11, 2009 to January 7, 2011 due to his service-connected disabilities.   
The Veteran also submitted an affidavit to VA in June 2018 in which he discussed his service-connected disabilities and how they impacted his ability to perform substantially gainful employment from February 11, 2009 to January 7, 2011.  The information he provided is consistent with the symptoms and difficulties he reported to his treating clinicians, as found in his VA medical records, during that time frame.  
Based on the above, the Board finds that the record contains sufficient evidence suggesting that the Veteran may be entitled to an earlier effective date for the award of a TDIU on an extraschedular basis.  As the Board finds there is plausible evidence of unemployability prior to January 7, 2011 due to service-connected disabilities, remand is required for referral to the Director of Compensation Service to determine if an extraschedular rating is warranted for a TDIU under 38 C.F.R. § 4.16(b).
The matter is REMANDED for the following action:
Refer the Veteran’s claim to the Director of Compensation Service for consideration of an assignment of an effective date earlier than January 7, 2011 for the award of TDIU on an extraschedular basis in accordance with the provisions of 38 C.F.R. § 4.16(b).
 
LESLEY A. REIN
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Melissa Barbee, Associate Counsel

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.