Citation Nr: 1751594 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 09-30 523 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU) prior to June 17, 2012. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Ferguson, Associate Counsel INTRODUCTION The Veteran served on active duty from May 2005 to June 2008. The Board of Veterans' Appeals (Board) raised the issue of entitlement to a TDIU prior to June 17, 2012 in a January 2015 decision, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board remanded the issue to the Agency of Original Jurisdiction (AOJ) for additional development. The case has now returned to the Board for additional appellate action. FINDING OF FACT The competent and credible evidence indicates that the Veteran's service-connected disabilities precluded him from obtaining and maintaining substantially gainful employment during the period on appeal. CONCLUSION OF LAW The criteria for entitlement to a TDIU prior to June 17, 2012 are met. 38 U.S.C.A. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.3, 4.7, 4.15, 4.16, 4.18, 4.19 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, including medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA notice letters must also include notice of a disability rating and an effective date for award of benefits if service connection is granted. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In this case, required notice was provided. With respect to the Veteran's claim for an earlier effective date for a TDIU on an extraschedular basis, this claim represents a downstream issue and therefore additional notice is not required. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records, VA treatment records, private treatment records, the Veteran's contentions, and an opinion from the Director of the Compensation Service (Director) have been associated with the claims file. II. TDIU prior to June 17, 2012 As noted in the introduction, the Veteran already is in receipt of a TDIU for the period, effective June 17, 2012. Prior to this date, he does not meet the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a). Nevertheless, the Veteran may be entitled to a TDIU on an extraschedular basis if it is established that he is unable to secure or follow substantially gainful employment as a result of the effect of his service-connected disabilities. 38 C.F.R. § 4.16(b). Consequently, the Board must determine whether the Veteran's service-connected disabilities preclude him from engaging in substantially gainful employment (work that is more than marginal, which permits the individual to earn a "living wage"). Moore v. Derwinski, 1 Vet. App. 356 (1991). The fact that a veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the Veteran, because of service-connected disabilities, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). This is so because a disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. Id. An inability to work due to advancing age may not be considered. 38 C.F.R. §§ 3.341(a), 4.19. In making its determination, VA considers such factors as the extent of the service-connected disability, and employment and educational background. See 38 C.F.R. §§ 3.340, 3.341, 4.16(b), 4.19. The Board is required to obtain the Director's decision before extraschedular TDIU may be awarded. Wages v. McDonald, 27 Vet. App. 233, 236 (2015). Rather, the regulation requires that when veterans are unemployable by reason of service-connected disabilities but fail to meet the threshold percentage requirements discussed above contained in 38 C.F.R. 4.16(a), the case is to be submitted to the Director for consideration of whether entitlement to a TDIU is warranted on an extraschedular basis. See 38 C.F.R. § 4.16(b). In this case, the Board remanded the instant claim in January 2015 so that it could be referred to the Director for extraschedular consideration. Subsequently, in May 2017, the Director issued a decision that found the evidence did not establish that the Veteran was unemployable due to service-connected disabilities prior to June 17, 2012; however, the Board finds that the opinion did not consider all relevant evidence in the casefile. Although the Board may not award a TDIU on an extraschedular basis in the first instance, the Court has determined that the Director's decision is in essence a decision by the AOJ, and is no different than a RO's decision in terms of its effect on the Board's jurisdiction and standard of review. See Wages v. McDonald, 27 Vet. App. 233 (2015). Accordingly, the Director's decision is not binding upon the Board and a de novo review of entitlement to a TDIU prior to June 17, 2012 is necessary. The Veteran listed recurrent back pain or any back problems on his separation report of medical history, and he indicated that he experienced constant lower back pain for approximately a year and a half prior. He further indicated that he became nervous in crowds, with cold sweats and trouble breathing, and that he had trouble sleeping with nightmares one to two times per week. He also noted that he was seen for depression and hallucinations while in Iraq, and indicated that it was very difficult to do work, take care of things at home, or get along with other people. A January 2007 record listed a past medical history of seeing objects, sleepwalking, and anger management. It noted that the Veteran was having trouble sleeping and lost rank for improper conduct with NCO's approximately one week before. An April 2007 record indicated that the Veteran was experiencing hallucinations for the prior 18 months. He stated that he had visual hallucinations during both day and night, but no audio hallucinations. He also complained of post-traumatic stress disorder (PTSD) symptoms related to his combat duty at the time, including: hyperstartle, hypervigilance, being irritable, having outbursts, poor concentration and memory, restricted emotion, avoidance behavior, and intrusive memories. A May 2008 private treatment note indicated that the Veteran had chronic PTSD and felt very frustrated and enraged by the way his command was treating him. An August 2008 VA examination diagnosed the Veteran with PTSD and indicated that it would affect his employability. The examiner stated that his anxiety, chronic sleep impairment, and mild memory loss would likely cause occasional occupational problems. In an October 2008 Notice of Disagreement regarding the disability rating assigned to his service-connected PTSD, the Veteran stated that he experienced anxiety attacks any time he was around crowds, and asserted that the rating decision did not address his hypervigilance and suspicion, his insomnia and bouts of depression, or his visual hallucinations that were previously documented during service. A VA Form 9 received in July 2009 indicated that the Veteran was unable to go to the supermarket until late at night to avoid crowds, had difficulty falling asleep, and experienced nightmares at least twice per week. It further indicated the he became nervous at work around people and had trouble functioning with noise. A January 2013 VA examination indicated that the Veteran had completed about three years of college since his discharge, and he claimed to be a "C student." He reported difficulties with concentration and loss of interest in his college classes. He further reported that he was fired from his prior position fueling planes after five months due to an argument with a co-worker, and was also fired from his job as a bar back before that for drinking while on the job. A Veteran's Application for Increased Compensation Based on Unemployability form received in February 2015 indicates that the Veteran had four different jobs between leaving active duty service and June 17, 2012. The first position listed was as security for a night club, which the Veteran indicated in a February 2015 statement he quit due to issues such as treating customers roughly, frequently cursing, and having trouble breathing while moving through crowds. For his next three jobs, he indicated that he was fired from each within two to three months. His February 2015 statement indicated he was fired from a job at a cinema due to arguments with his supervisor; he was fired from a position with at a restaurant because "it was determined that [he] didn't fit well with the staff;" he was fired from a job with a cruise line for cursing at a bus driver and having a blood alcohol level over the alcohol limit for off-duty crew members; and he was terminated from a position with an aviation company due to fighting with other employees. He further indicated that he applied to many other jobs but was unable to find employment. In an October 2015 statement in support of claim, the Veteran indicated that his prior attendance in Reserve and National Guard units was limited, and that due to medical conditions he was eventually honorably discharged. He disputed the accuracy of his attendance records and claimed that he actually attended far fewer training days than were listed. An October 2015 Notice of Waiver of VA Compensation or Pension to Receive Military Pay and Allowances stated that the Veteran had 43 training days in fiscal year 2011 and 28 training days in fiscal year 2012. The Notice form stated that most reservists/guardsmen are paid for approximately 63 training days during a fiscal year. A January 2017 VA medical opinion indicated that from August 2008 the Veteran's disabilities would limit physical activity, including a limitation of the duration of prolonged standing, bending, walking, running, weight lifting limitations, and participation in arduous physical work. However, it also indicated that up to June 2012, neither the Veteran's back disability nor left shoulder disability would limit his ability to perform sedentary aspects of employment. In a January 2017 VA PTSD opinion, the psychologist indicated that, during the period at issue, the Veteran was likely to be mildly to moderately impaired in a work environment that required frequent interactions with customers, co-workers, or supervisors, due to anxiety and irritability which may have worsened around others; that he was likely to be moderately impaired in a work environment containing machinery, due to difficulty with insomnia and frustration and irritability related to PTSD; that he was likely to be moderately to markedly impaired in a work environment that required driving, due to anxiety about driving and irritability related to PTSD; that he was likely to be mildly to moderately impaired in a work environment that required the ability to sustain concentration and focus as normally found in most jobs when working in a solitary situation and that he was likely to be mildly to moderately impaired when working around others; that he was likely to be moderately impaired in a work environment that is fast paced, complex, and/or frequently changing due to anxiety and low frustration tolerance secondary to PTSD and disturbed sleep; and that he was likely to be moderately impaired in a work environment that required rigid adherence to a set work schedule due to difficulty with his sleep schedule. The psychologist stated that although the Veteran's anxiety, irritability, and concentration impairment may have made it difficult for him to work around others, he appeared to have effectively completed some work and education, specifically noting the Veteran's work as a cashier in a gas station in 2009, attending college in 2010 and 2011, and being in the Reserves in 2012 with no significant problems noted. The psychologist opined that generally PTSD disabilities do not render it impossible for the average person to engage in substantially gainful employment consistent with levels of experience and education, and that many veterans with similar PTSD symptoms have productive work lives within the limits of their disability. Based on this reasoning the psychologist concluded that upon reviewing available clinical documentation there did not seem to be an unusual or exceptional disability picture specifically related to PTSD prior to June 17, 2012. The Board notes that the January 2017 VA PTSD opinion does not appear to consider the Veteran's lay testimony found outside of his treatment records. The Director's May 2017 decision indicated that the record did not demonstrate that the Veteran was unable to secure or follow substantially gainful employment due to his service connected disabilities prior to June 7, 2012. In support of this position, the Director relied almost entirely on the January 2017 VA opinions listed above. Additionally, the Director noted that the Veteran was a student at an aviation school in 2010, with an anticipated graduation date of 2012; that he was active in the Reserves; and that a January 2012 primary care evaluation noted that his PTSD symptoms were mild. The Director also noted that the Veteran was last employed in January 2015, and that he quit the job, but did not discuss how that was relevant to the current matter. Additionally, the Director did not address the Veteran's employment during the period on appeal or his statements describing his PTSD symptoms and how they affected his ability to obtain and maintain substantially gainful employment. Therefore, the Board finds that the Director's decision is unsubstantiated and of little value in the instant matter. The evidence of record indicates that the Veteran was unable to obtain or maintain substantially gainful employment prior to June 17, 2012. The January 2017 VA psychologist indicated a myriad of job situations in which the Veteran would be impaired due to his disabilities. The evidence of record not only indicates that the Veteran's service-connected disabilities would have impacted his ability to obtain or maintain employment in numerous sedentary or physically demanding positions, but it directly indicates that the Veteran's inability to interact appropriately with co-workers and supervisors, as well as substance abuse issues, led to him being fired from multiple positions. Although the Veteran advanced his education and skills during the period on appeal, and having an advanced education is an indication of greater employment opportunity, the record indicates that the Veteran's PTSD would present an impediment in nearly any occupational setting due to difficulties with irritability, anxiety, and concentration. Further, the occupational impairment described in the August 2008 VA examination and January 2017 VA medical opinions manifested multiple times between 2008 and 2012, resulting in the Veteran being fired from multiple jobs. The Board notes that none of his employment evidenced in the record during the relevant period lasted more than a few months, and therefore finds that it was marginal. Additionally, the record indicates that during his time in the Reserves and National Guard, the Veteran participated in far fewer days than average, and he stated that his disabilities contributed to poor attendance and ultimately led to his discharge. In consideration of the evidence of record, the Board finds that the preponderance of the evidence indicates that the Veteran's service-connected disabilities precluded him from securing and following a substantially gainful occupation during the period on appeal. Accordingly, entitlement to a TDIU on an extraschedular basis is warranted. See 38 C.F.R. § 4.16(b). ORDER Entitlement to a TDIU prior to June 17, 2012 is granted. ____________________________________________ M. H. Hawley Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs