Citation Nr: 1752401 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 08-37 564 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to April 22, 2016. REPRESENTATION Appellant represented by: Robert V. Chisholm, Esq. ATTORNEY FOR THE BOARD Eric Struening, Associate Counsel INTRODUCTION The Veteran had active military service from April 1968 to January 1970. This matter comes before the Board of Veterans' Appeals (Board) from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, which denied a rating in excess of 30 percent for service-connected posttraumatic stress disorder (PTSD). In December 2011, the Board took jurisdiction over TDIU as part of the claim for increased rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In December 2011 and June 2014, the Board remanded the issue of entitlement to TDIU for additional development. In February 2017, the Board issued a decision granting TDIU from April 22, 2016, and denying TDIU prior to April 22, 2016. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a September 2017 Joint Motion for Partial Remand (JMR) the Court vacated that part of the February 2017 Board decision that denied TDIU prior to April 22, 2016 and remanded the claim for compliance with the JMR. The Board recognizes that in an October 2017 letter the Veteran's attorney requested an additional 30 additional days to submit further evidence. However, as the Board is granting the Veteran's claim in full the Board finds the Veteran is not prejudiced by proceeding with the adjudication of this claim. FINDING OF FACT Prior to April 22, 2016, the Veteran's service-connected disabilities precluded substantially gainful employment. CONCLUSION OF LAW The criteria for an award of TDIU, on an extraschedular basis, have been met, prior to April 22, 2016. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.17 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION TDIU may be assigned to a Veteran who meets certain disability percentage thresholds and is "unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities." 38 C.F.R. § 4.16(a). If a veteran fails to meet the percentage standards set forth in § 4.16(a) (one disability evaluated at 60 percent or more, or two or more disabilities (at least one of which is evaluated at 40 percent) with a combined evaluation of at least 70 percent) but is "unemployable by reason of service-connected disabilities," the matter should be submitted to the Director, Compensation Service, for extraschedular consideration. 38 C.F.R. § 4.16(b). The Director's decision denying TDIU on an extraschedular basis is reviewed de novo by the Board. See Wages v. McDonald, 27 Vet. App. 233 (2015). Marginal employment is not considered to be substantially gainful employment. Marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16 (a). Prior to April 22, 2016, the Veteran had established service connection for PTSD with depression, evaluated as 30 percent from September 5, 2003 and as 50 percent from May 7, 2007; tinnitus, evaluated as 10 percent from January 20, 2005; and bilateral hearing loss, evaluated as noncompensable (0 percent) from January 20, 2005. His combined rating was 60 percent. Thus, he did not meet the percentage requirements set forth in 38 C.F.R. § 4.16(b). Pursuant to the Board's June 2014 remand, the TDIU claim was referred to the Director. In July 2016, Director determined that entitlement to TDIU on an extraschedular basis was not warranted prior to April 22, 2016 because "no service-connected disabilities are identified individually or collectively, as the sole reason for the Veteran's unemployability." On June 2007 VA audiology examination, the examiner characterized the Veteran's hearing as normal through 2000 hertz with moderately-severe to severe sensorineural hearing loss from 3000 to 8000 hertz in his right ear, and normal hearing through 2000 hertz with severe to profound severe hearing loss from 3000 to 8000 hertz in his left ear. On August 2007 VA PTSD examination, the Veteran reported that he took early retirement from his full-time job in November 2003 because he "could not handle the work stress." He reported that since November 2003 he had worked four different part-time jobs, currently working four half days a week at a car dealership in the parts department. The examiner concluded that the Veteran is able to maintain part-time employment, but that appeared to be attributed to a very understanding employer. In his November 2008 VA Form 9 substantive appeal, the Veteran reported having almost constant panic attacks; fear and shaking; a very bad memory; and that stressful work conditions and situations keep him from working. He also reported having passive suicidal ideation. On December 2008 VA PTSD examination, the Veteran reported having symptoms including verbal outbursts, chronic feelings of jumpiness, daily anxiety, decreased ability to concentrate and deceased memory for nearly learned information. When assessing the Veteran's occupational impairment as a result of PTSD, the examiner noted that the Veteran was retired, but when employed, workplace impairments included chronic feelings of jumpiness, anxiety daily in the workplace, panic attacks once every two weeks (necessitating an extended break or leaving early), decreased ability to concentrate and decreased memory of newly learned information. Although the examiner characterized the Veteran's occupational impairment as moderate, he further noted that "[i]f he were to seek or maintain employment, concentration impairments such as focusing and remaining on tasks and paying attention to detail would interfere with workplace functioning as well twice weekly panic attacks. Daily irritability and verbal outbursts would interfere with workplace relationships as would his withdrawal and tendency to isolate. A position in which contact with customers, co-workers and supervisors and performance/productivity demands were minimal would best suit [the Veteran]." On June 2012 VA audiology examination, the examiner opined that the Veteran's bilateral hearing loss would not cause him to be unemployable, but it would be expected that the Veteran would have greater difficulty understanding speech clearly in the presence of background noise, in group settings, or if the speaker was not facing him. On June 2012 VA PTSD examination, the examiner summarized the Veteran's occupational and social impairment as 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 examiner opined that the Veteran remained employable from a mental health perspective. "He would likely experience only mild to moderate work difficulty owing to mental health issues if otherwise capable of employment." On August 2014 VA audiology examination, the examiner opined that the Veteran's hearing loss and tinnitus did not preclude his ability to secure or maintain gainful employment. Given his excellent word recognition ability at normal conversational levels "it would not be expected to prevent the Veteran from obtaining or maintaining gainful employment due to his documented high-frequency hearing loss." On August 2014 VA PTSD examination, the examiner found that the Veteran's occupational and social impairment was reflected by 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. With regards to the Veteran's employability, the examiner noted functional limitations that are likely to manifest in a competitive work place setting. These limitations included memory problems; concentration and persistence; social interaction; ability to maintain a routine work schedule with regular attendance; and decreased energy. In his application for TDIU, submitted in August 2016, the Veteran reported that he had last worked in November 2011 as a part-time salesman, and had last worked full time in February 2005. He also reported that he had a four year college degree. The Board finds that TDIU is warranted prior to April 22, 2016 because the record reflects that the Veteran was unemployable due primarily to his service-connected PTSD. The record shows that during this period, the Veteran was marginally employed in a part-time capacity as a salesman from July 2008 until November 2011. He also described having flexibility in his job and having "a very understanding employer" which reflected that he worked in a protected environment. Prior to this part-time salesman job he had also worked in three other part-time jobs after retiring from full time employment in November 2003, which was due to work related stressors. As was noted by the August 2007 VA examiner the Veteran still experienced difficulties in his employment due to his PTSD symptoms. These symptoms included visual hallucinations, hypervigilance, outbursts of anger, startled response and panic attacks. The Veteran reported that he would have to miss work when he would have an anxiety or panic attack. The August 2007 examiner opined that while the Veteran was able to maintain his part-time employment, it appeared to be due to his "very understanding employer." The December 2008 VA examiner noted that concentration problems and twice weekly panic attacks would interfere with employment. The August 2014 VA examiner described the functional impairments related to PTSD as affecting memory, concentration and persistence, social interaction, decreased energy and the ability to maintain regular attendance. In affording the Veteran the benefit of the doubt, the Board finds that the Veteran would likely not have been able to maintain his part-time employment had he not had an understanding employer in a protective environment, and his symptoms would have precluded him from maintaining substantially gainful full-time employment in a non-protective environment. Additionally, throughout this period, the Veteran reported symptoms such as memory problems, difficulty concentrating, anxiety, and panic attacks, which suggest that he would have difficulty maintaining employment in a traditional workplace setting without an understanding employer. Although VA audiological examiners opined that the Veteran was not unemployable because of his service-connected hearing loss and tinnitus, the examiners did note a greater difficulty understanding speech clearly in the presence of background noise, in group settings, or if the speaker was not facing him. As support for that conclusion, one examiner commented on the Veteran's excellent word recognition ability "at normal conversational levels." The Board finds that, as a result of the collective impairment related to his service-connected PTSD, hearing loss and tinnitus prior to April 22, 2016, the Veteran was precluded from securing and following substantially gainful employment due to his service-connected disabilities and TDIU is warranted. ORDER Entitlement to TDIU prior to April 22, 2016 is granted. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs