Citation Nr: 1755030 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 10-15 035 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to a total disability rating for compensation based on individual unemployability (TDIU) on an extraschedular basis prior to May 24, 2015. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from April 1965 to October 1968. This case was originally before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). In a January 2015 decision, the Board denied the Veteran's claim for an increased rating for PTSD, and remanded the issue of entitlement to a TDIU. The Veteran appealed the denial of an increased rating for PTSD to the U.S. Court of Appeals for Veterans Claims (Court). In June 2016, the Court issued a Memorandum Decision that vacated the Board's decision denying the Veteran's claim for an increased rating for or PTSD, finding that the Board erred insofar as it failed to explain how it could properly decide the disability rating for PTSD without another medical examination but needed such an examination to properly decide entitlement to TDIU. The Court also indicated that the Board's failure to explain why the issues of an increased rating for PTSD and entitlement to TDIU were not inextricably intertwined frustrated judicial review. Thereafter, a January 2017 Board decision, in pertinent part, found that the criteria for a 70 percent rating and TDIU were met effective from May 24, 2015. A remand accompanying this decision requested development with respect to the matter of entitlement to TDIU on an extraschedular basis prior to May 24, 2015. The requested development had been accomplished, and the issue of entitlement to TDIU on an extraschedular basis prior to May 24, 2015, is now ready for appellate review. FINDINGS OF FACT 1. The Veteran has education through four years of college and worked for 25 years with as a counselor; he reports that he was last able to work at this position due to symptoms of PTSD in 2006. 2. Service connection is in effect for one disability, PTSD, rated at 50 percent prior to May 24, 2015, and 70 percent from that date. 3. The weight of the evidence is against a conclusion that PTSD prevented the Veteran from securing and following a substantially gainful occupation prior to May 24, 2015. CONCLUSION OF LAW The criteria for TDIU on an extraschedular basis prior to May 24, 2015, are not met. 38 U.S.C. 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 3.340, 3.400, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Notice and Duty to Assist/Standard of Review Neither the Veteran nor his representative has raised any issues with respect to the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the Veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 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. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court 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. II. Analysis TDIU may be assigned when a Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. If there is only one service connected disability, this disability should be rated at 60 percent or more, if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service connected disability to bring the combination to 70 percent or more. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The ultimate question of whether a Veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). As such, the focus of the examiner is not on whether the Veteran is unemployable due to his service-connected disabilities but the functional impairment caused solely by his service-connected disabilities. VBA Fast Letter 13-13 (June 17, 2013). In a VA Form 21-8940 (Veterans Application for Increased Compensation Based on Unemployability) received in May 2015, the Veteran reported education through 4 years of college and that he became too disabled to work in July 2006. Further detail as to the Veteran's employment of record reflects that he worked with VA as a PTSD counselor for 25 years, and that the Veteran claims he was forced to leave this position due to symptoms of PTSD in 2006. Service connection is in effect for one disability, PTSD, rated at 50 percent prior to May 24, 2015, and 70 percent from that date. As such, the minimum schedular criteria for TDIU under 38 C.F.R. § 4.16(a) were not met prior to May 24, 2015. While the percentage requirements were not met for TDIU under 38 C.F.R. § 4.16(a) prior to May 24, 2015, entitlement to TDIU may nonetheless be granted prior to that time on an extra-schedular basis in exceptional cases when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. See 38 C.F.R. §§ 3.321(b), 4.16(b). In this regard, the January 2017 remand directed that the AOJ refer the matter of entitlement to TDIU on an extraschedular basis prior to May 24, 2015 to the Director of the VA Compensation Service (Director). Bowling v. Principi, 15 Vet. App. 1 (2001) (if the Veteran does not meet the percentage requirements, the Board cannot grant TDIU in the first instance, but must first insure that the TDIU claim is referred to the Director for adjudication.) Following this remand and based on a review of the electronic record, the Director issued a decision received in January 2017 denying entitlement to TDIU on an extraschedular basis prior to May 24, 2015. The Director's decision is not evidence, but, rather, the de facto AOJ decision, and the Board must conduct a de novo review of this decision. Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015) (holding that the Board conducts de novo review of the Director's decision denying extraschedular consideration). After a careful review of all evidence of record, the Board agrees with the Director and finds that the Veteran's PTSD did not prevent him from securing and following a substantially gainful occupation prior to May 24, 2015. Notably, the February 2009 VA examiner indicated that the Veteran's thought processes were appropriate; he was able to read and understand directions; there was no looseness of thought; the Veteran did not appear confused; and abstract thinking and memory were within normal limits. In assessing the impairment of functioning due to PTSD, rather than finding that there was total impairment, impairment in most areas, or impairment with reduced reliability and productivity, the February 2009 examiner found the best description of the Veteran's psychiatric impairment to be manifesting in occasional decrease in work efficiency and an intermittent inability to perform occupational tasks, but that he was generally functioning satisfactorily. The Veteran was afforded a Global Assessment of Functioning Score of 55-60, which is indicative of between "moderate" and "serious" occupational impairment. See Richard v. Brown, 9 Vet. App. 266, 267 (1996). Subsequent to this examination, the evidence demonstrates that although the Veteran was not working, he maintained active involvement in veterans' causes, demonstrating an ability to find and secure gainful work. Indeed, a January 25, 2013 VA Mental Health Counseling Note indicated that the Veteran was becoming more involved in the local chapter of his service organization, and has been encouraged by members to run for president. At the time, the Veteran indicated awareness of the increase in social pressure that a leadership position can provoke, but also expressed understanding that this may give him an opportunity to continue his service to fellow veterans. At the time, the Veteran noted that had confronted his avoidant tendencies by agreeing to speak with a group of High School students regarding his experiences in Vietnam and the subsequent emotional fall-out. A subsequent VA mental hygiene note dated in August 2014 similarly noted the Veteran's report that he had become increasingly involved with his local service organization, that he had organized an Agent Orange Town Meeting, and that he was working with local politicians and government officials to establish a Vet Center in the western part of the state. Furthermore, a February 2015 VA outpatient treatment report indicated the Veteran was continuing to assist veterans while exploring ways to balance his life, and that when his VA examiner retired later that summer, he did not intend to continue his mental health treatment. An October 2015 VA mental hygiene note reflected the Veteran's report that he was "very active" in the veterans' community, the State Veteran's Council, and his service organization. The Board is appreciative of the work the Veteran has done in service to veterans, and in no way doubts that prior to May 24, 2015, the Veteran's PTSD affected his daily life and caused difficulty in obtaining work. Indeed, the Board recognized the occupational and social impairment caused by the Veteran's PTSD in awarding an increased rating to 50 percent prior to that date in its January 2017 decision. However, the Board finds that the medical and lay evidence described above favors a finding that prior to May 24, 2015, the Veteran demonstrated the capacity to secure and follow a gainful occupation despite the effects of his service-connected psychiatric disability. While the Veteran, as a counselor, is competent to attest to the impact his disability had on his ability to work at the time, the Board nevertheless finds that the evidence described above-showing the Veteran's ability to read and understand directions, maintain normal thought processes, and think abstractly without memory problems, as well as to interact with others and accomplish tasks through his activities within the veterans' community, with state council members, and with his service organization through 2015-outweighs the Veteran's assertions to VA in furtherance of his TDIU claim, and demonstrates a capacity to find and maintain gainful employment during that time period. As discussed by the Board in its January 2017 decision, the evidence of record dating from May 24, 2015 onward is supportive of an increased rating for PTSD to 70 percent (indicative of occupational and social impairment with deficiencies in most areas), with a corresponding award of a TDIU at that time. In sum, the Board finds that the preponderance of the evidence is against a conclusion that PTSD prevented the Veteran from securing and following a substantially gainful occupation prior to May 24, 2015. Thus, entitlement to TDIU prior to May 24, 2015 is not warranted on an extraschedular basis. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.400, 4.16; Gilbert, supra. ORDER Entitlement to a TDIU on an extraschedular basis prior to May 24, 2015, is denied. ____________________________________________ V. Chiappetta Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs