Citation Nr: 1754321 Decision Date: 11/28/17 Archive Date: 12/07/17 DOCKET NO. 09-20 507 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to a total disability rating for compensation purposes based upon individual unemployability due to service-connected disability (TDIU) prior to February 14, 2013. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran served on active duty from May 1968 to April 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran presented testimony at a Board hearing in June 2016, and a transcript is of record. This matter was remanded in September 2016 for further development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. Prior to February 14, 2013, the Veteran's combined schedular service-connected disability rating was 30 percent. 2. Prior to February 14, 2013, the Veteran was not precluded from all forms of substantially gainful employment due to his service-connected disability, posttraumatic stress disorder (PTSD). CONCLUSION OF LAW Prior to February 14, 2013, the criteria for a TDIU are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App.518, 519 (1996), citing Gilbert. The Veteran contends, in essence, that he was unable to secure and maintain substantially gainful employment due to his service-connected psychiatric disorder prior to February 14, 2013, and that therefore, a TDIU is warranted prior to that time. Disability ratings are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155. 38 C.F.R. Part 4 contains the rating schedule. Total disability ratings for compensation based on individual unemployability may be assigned when the combined schedular rating for the claimant's service-connected disabilities is less than 100 percent, and when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age, provided that, if there is only one such disability, this disability is ratable at 60 percent or more, or, if there are two or more disabilities, there is at least one disability ratable at 40 percent or more and additional disabilities sufficient to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). A total disability rating may also be assigned on an extra-schedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). The Veteran's service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Prior to February 14, 2013, service connection was in effect only for PTSD, and it was rated as 30 percent disabling, making his combined rating 30 percent. The Veteran's combined evaluation is no more than 30 percent prior to February 14, 2013. Since he did not have one service-connected disability with an evaluation of at least 60 percent, or two or more disabilities with a combined rating of at least 70 percent with one disability rated at 40 percent, the initial criteria for schedular consideration for the grant of TDIU under 38 C.F.R. § 4.16(a) are not met. However, a TDIU evaluation can still be awarded prior to February 14, 2013 if it is established by the evidence of record that the Veteran's service-connected PTSD rendered him unable to secure and follow substantially gainful employment prior to February 14, 2013. If there is evidence of this, the case is to be sent to the Director of Compensation and Pension for extraschedular consideration. See 38 C.F.R. §§ 3.340(a), 3.341(a), 4.16(b). In this case, there is no basis to refer the case to the Director of VA's Compensation and Pension Service. The record as to the Veteran's disablement from service-connected psychiatric disability prior to February 14, 2013 has been carefully reviewed. Records from around January 2011 illustrate the Veteran's difficulties at about that time. A January 2011 VA medical record notes that he had moved from his mother's home and was renting a place of his own, and that he came home to help take care of her. Since taking medications as prescribed, he was no longer having homicidal ideations, which an earlier record shows were directed toward a person who was trying to take his mother's real property. He was able to control himself and knew he had to be there for his mother. Also, he was unable to visit his son, who was in prison. He reported that the medicines were good for him and he was clinically stable with no suicidal or homicidal ideations of plan or intent, and had adequate judgment and insight. His thought processes were logical, coherent, and goal directed, and he had no delusions, hallucinations, or signs of psychosis. There were no loose associations, flight of ideas, or ideas of reference. A February 2010 VA medical record is similar. There are many other medical records of record from between November 2006 and February 14, 2013, with little or no mention of any psychiatric symptomatology or impairment. Most of the records that contain information regarding psychiatric symptomatology indicate that the Veteran denied it and had normal psychiatric findings. Additionally, a VA psychiatric examiner in May 2017 examined the Veteran and found that then, 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, best summarized the Veteran's level of occupational and social impairment due to all mental diagnoses. The Board notes that in October 2017, the representative reported that the Veteran has continuously contended that his symptomology was much more serious than portrayed by the VA medical examiner in May 2017. However, the preponderance of the evidence, including the contemporaneous treatment records dated prior to February 14, 2013, is against a finding that his psychiatric symptomatology rendered him unemployable before then, based on the evidence of record. Because the preponderance of the evidence shows that the Veteran's service-connected PTSD did not render him unemployable prior to February 14, 2013, there is no basis to support an extraschedular TDIU rating, and so referral to the Director of VA's Compensation and Pension Service for extraschedular consideration of a TDIU is not warranted. The benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against a TDIU prior to February 14, 2013. While the Board is unable to grant the benefits sought, it is thankful for the Veteran's Vietnam Era service, especially that which he has described as in and around significant action overseas, to help support the war effort, and wishes him well in his endeavors. ORDER Entitlement to a TDIU prior to February 14, 2013 is not warranted. Accordingly, the appeal is denied. ____________________________________________ M. C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs