Citation Nr: 18146830 Decision Date: 11/01/18 Archive Date: 11/01/18 DOCKET NO. 11-21 115A DATE: November 1, 2018 ORDER Entitlement to an extraschedular total disability rating based on individual unemployability (TDIU), under 38 C.F.R. § 4.16 (b), from February 1, 2012, is granted. FINDINGS OF FACT 1. The Veteran is service-connected for posttraumatic stress disorder (PTSD), rated as 50 percent disabling; diabetes mellitus, rated as 20 percent disabling; and erectile dysfunction, rated as noncompensable. His combined rating is 60 percent. 2. It is at least as likely as not that the Veteran’s service-connected PTSD has prevented him from engaging in substantially gainful employment since February 1, 2012. CONCLUSION OF LAW Resolving the benefit of the doubt in the Veteran’s favor, the criteria for a finding of a TDIU under 38 C.F.R. 4.16 (b) have been met from February 1, 2012. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 4.3, 4.16(b), 4.18. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from March 1970 to February 1972. This matter comes before the Board of Veterans’ Appeals Board (Board) on appeal from a December 2010 rating decision by the Department of Veterans’ Affairs (VA) Regional Office (RO) in Waco, Texas. The matter is currently under the jurisdiction of the Oakland RO. Entitlement to a TDIU on an extraschedular basis since February 1, 2012 The Veteran contends that he is entitled to TDIU since February 1, 2012 on the basis that his service-connected PTSD precludes him from engaging in substantially gainful employment. For the reasons explained below, the Board finds that entitlement to a TDIU on an extraschedular basis is warranted, effective February 1, 2012, the day after his last day of employment. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). Even when the criteria under 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. 38 C.F.R. §4.16 (b). The Board does not have the authority to assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Rating boards will refer to the Director of the Compensation Service for extra-schedular consideration all cases of veterans who are unemployable by reason of service connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16 (a). When there is an approximate balance of 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; 38 C.F.R. § 3.102 (reasonable doubt to be resolved in veteran’s favor). In its June 2018 remand, the Board referred the Veteran’s claim to the VA Director of the Compensation Service, for extraschedular consideration under the provisions of 38 C.F.R. § 4.16 (b). The Director of Compensation Service considered whether extraschedular consideration was warranted in an August 2018 decision and determined that individual unemployability benefits were not warranted. Consequently, as the claim has been denied on an extraschedular basis by the Chief of Compensation Service, the Board may now consider whether a TDIU is warranted under the provisions of 38 C.F.R. § 4.16 (b). The Veteran claims that he is unable to secure or follow a substantially gainful occupation due to his service-connected PTSD. The record shows that the Veteran has been unemployed since 2012. See Veteran’s VA Form 21-8940. The Veteran’s VA Form 21-8940 indicates that he previously worked as a letter carrier and most recently as a parking attendant. His highest level of education is 2 years of college and he does not have any other education or training. At a February 2012 VA examination, the Veteran reported that while working as a parking attendant at a local high school, the students would aggravate him with their cursing and lack of respect. He reported that he tried to hold back his angry outbursts at work, but his supervisors would reprimand him for his failure to complete required tasks. He endorsed symptoms of panic attacks 2 to 3 times per week; fleeting suicidal or homicidal thoughts; difficulty sleeping and concentrating. The examiner opined that the Veteran suffered from occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. June and October 2012 VA treatment records indicate that the Veteran reported that his mood was better and he did not feel depressed. He reported retiring in January 2012 and enjoying the free time to spend with his grandkids. He reported sleeping 5 to 6 hours a night; nightmares 1 to 2 times per week; and feeling on guard at times. He denied suicidal or homicidal ideations; psychotic and manic symptoms or flashbacks. The Veteran was afforded a VA PTSD examination in May 2016 where he reported being married to his wife for 47 years. He described his marriage as okay and admitted to angry outbursts towards his wife and “up and down” relationships with his children. He reported spending most of his time watching television. He described having an increase in anxiety attacks, although he admitted that his psychotropic medications have helped manage his mood. He endorsed occasional suicidal ideations, but stated that he never acted on them. He also endorsed nightmares; difficulty sleeping angry outbursts and low energy levels. The examiner opined that the Veteran suffered from occupational and social impairment with reduced reliability and productivity. In November and December 2016 correspondences, the Veteran’s spouse and son attested to the severity of the Veteran’s PTSD. His spouse stated that the Veteran gets very anxious when engaging in any activity outside the house. She stated that he also has angry outbursts if traffic is bad and occasionally talks about death. His son stated that the Veteran has exhibited symptoms of anxiety, depression and anger. His son also stated that “…I have seen him have severe anxiety attacks like he is dying almost.” In July 2017, the Veteran was evaluated by Dr. M.C., a private doctor who specializes in psychiatry, internal and addiction medicine, who opined that the Veteran suffers from “pervasive PTSD symptoms.” Dr. M.C. opined that the Veteran’s PTSD symptoms include the inability to handle to stress; angry outbursts; social withdrawal; extensive irritability and intermittent suicidal ideations. He noted that the Veteran rarely leaves the house and only interacts with family members. Dr. M.C. noted that he had reviewed the Veteran’s medical history and interviewed him on 2 separate occasions. He noted that during his interviews with the Veteran, he surmised that his PTSD had improved to an extent after he stopped working, but explained that this was “because the stress and anxiety he faced at [work] . . . was removed from his life.” He added that the Veteran’s decrease in symptoms were temporary and he began to experience frequent nightmares and panic attacks; angry outbursts and intense reclusive behavior. He concluded that the Veteran’s PTSD symptoms make it difficult, if not impossible, to function effectively in a work environment on a daily basis. Although the Director of Compensation found that Veteran was not unemployable due to his service-connected disabilities, the Board finds that there is sufficient evidence to conclude to the contrary. In that regard, the Board assigns significant probative value to the July 2017 psychiatric evaluation by Dr. M.C. A medical opinion is most probative if it is factually accurate, fully articulated, and based on sound reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Dr. M.C. provided a thorough analysis of the Veteran’s medical picture after reviewing relevant medical records, lay statements and 2 interviews with the Veteran. He addressed seemingly inconsistent reports of the severity of the Veteran’s symptoms and provided plausible explanations for the inconsistencies. The Board also assigns probative value to the lay statements provided by the Veteran, his spouse and son. They provide a picture of how the Veteran navigates through life on a daily basis and the challenges he faces due to his service-connected PTSD. (Continued on the next page)   Here, the private medical opinion in addition to the lay statements described above weigh in favor of the grant of extraschedular TDIU, while the negative opinion from the Director of Compensation Service weighs against the claim. The Board finds that the cumulative weight of the favorable evidence is equal to the weight of the negative evidence; and resolving doubt in favor of the Veteran, the claim of entitlement to TDIU on an extraschedular is granted. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Based upon the VA examination; private psychiatric evaluations; lay statements the Veteran’s employment history, and his level of education, the Board finds that the Veteran is unemployable as a result of his service-connected PTSD. BISWAJIT CHATTERJEE Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Baskerville, Counsel