Citation Nr: 18149541 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 08-28 916 DATE: November 9, 2018 ORDER Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU) is granted. FINDING OF FACT Although the schedular criteria for TDIU are not met, the Veteran’s service-connected disability has rendered him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for TDIU on an extraschedular basis have been met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.15, 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a veteran (the Veteran) who had active duty service from November 1968 to November 1970. This appeal comes before the Board of Veterans’ Appeals (Board) from a November 2006 rating decision of the RO in Cleveland, Ohio. In February 2015, the Veteran presented testimony at a Board hearing, chaired by the undersigned Veterans Law Judge at the VA Central Office in Washington, DC. The subject of the hearing was a psychiatric rating claim, which has since been decided. A transcript of the hearing is associated with the claims file. 38 C.F.R. § 3.103 (2017). In April 2015, the Board granted an increased rating of 50 percent for the service-connected psychiatric disability and denied any higher ratings. The psychiatric rating claim had been the subject of a remand from the United States Court of Appeals for Veterans Claims (Veterans Court). The Board’s decision with respect to the psychiatric disability is final. See 38 C.F.R. § 20.1100 (2017). The Board also determined that the issue of TDIU entitlement had been reasonably raised by the record in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009) and remanded the issue for additional evidentiary development. In February 2018, the Board again remanded the appeal for referral to the Director of the Compensation and Pension Service (Director) for consideration of TDIU on an extraschedular basis. In a June 2018 determination, TDIU on an extraschedular basis was denied by the director (Record 08/10/2018). In an August 2018 Supplemental Statement of the Case, the VA Appeals Resource Center also denied the claim (Record 08/15/2018). The appeal has since been returned to the Board. Entitlement to a total disability rating based on individual unemployability due to service connected disabilities It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340(a)(1), 4.15. A claim for a total disability rating based upon individual unemployability presupposes that the rating for the service-connected disability is less than 100 percent, and only asks for TDIU because of subjective factors that the objective rating does not consider. Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). In evaluating a veteran's employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The term substantially gainful occupation is not specifically defined for purposes of the regulations governing TDIU. However, marginal employment is not considered substantially gainful employment. Marginal employment includes situations in which an individual’s annual income does not exceed the poverty threshold for one person. Employment may be marginal even when the individual’s earned income exceeds the poverty threshold if such individual is employed in a protected environment such as a family business or sheltered workshop. 38 C.F.R. § 4.16(a). A total disability rating 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. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran has only one service-connected disability. Service connection is in effect for posttraumatic stress disorder (PTSD), and is assigned a disability rating of 50 percent, effective November 30, 2005. Therefore, the schedular criteria for TDIU have not been met. Pursuant to 38 C.F.R. § 4.16(b), when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16(a), such case shall be submitted for extraschedular consideration. The Board itself cannot assign an extra-schedular rating in the first instance. The Board’s consideration is limited to whether to refer the case to the Director of Compensation and Pension Service for an extra-schedular evaluation. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001) (Board may not assign a TDIU in the first instance when the schedular requirements of 38 C.F.R. § 4.16(a) are not met). For a veteran to prevail on a claim for a total compensation rating based on individual unemployability on an extraschedular basis, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). In Hatlestad v. Derwinski, 1 Vet. App. 164 (1991), the Court referred to apparent conflicts in the regulations pertaining to individual unemployability benefits. Specifically, the Court indicated there was a need to discuss whether the standard delineated in the controlling regulations was an “objective” one based on the average industrial impairment or a “subjective” one based upon the veteran's actual industrial impairment. In a pertinent precedent decision, the VA General Counsel opined that the controlling VA regulations generally provide that veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. It was also determined that “unemployability” is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91. After the evidence has been assembled, it is the Board’s responsibility to evaluate the entire record. 38 U.S.C. § 7104(a) (West 2014). 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 (West 2014); 38 C.F.R. §§ 3.102, 4.3 (2017). A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert at 54. The Veteran’s work history is limited to occupations involving construction, timber cutting, and operation of heavy machinery, such as truck driving and crane operation. He last worked in 2005 and has a high school education (Record 10/24/2007). A November 2017 VA Mental Disorders Examination notes that the Veteran has low frustration and stress tolerance, intrusive thoughts, sleep problems, and difficulty with concentration, resulting from his psychiatric disability. According to the examiner, these symptoms would adversely affect any work activity. The Veteran would only be able to perform tasks that are simple and repetitive in nature, given problems he would have processing more complex instructions. He would be able to relate to coworkers only on a superficial level, and could not tolerate working with the public. The examiner concluded that, overall, the Veteran would have problems tolerating the stress of a typical workweek (Record 11/27/2017). Private psychologist E. Tripi, Ph.D., opined in a January 2015 report that the Veteran’s mental state is such that he would not be able to obtain and sustain substantial, gainful work activity; however, she reported that the Veteran’s nonservice-connected cerebrovascular accident contributes to and exacerbates his mental symptoms and impairment, particularly impairment of memory and judgment. Symptoms noted in her report include difficulty concentrating, panic attacks, memory loss, insomnia, social withdrawal and depression (Record 01/29/2015). After a review of all of the evidence, the Board finds that the Veteran’s service-connected psychiatric disorder is productive of a significant level of occupational impairment, which is reflected in the rating of 50 percent currently assigned. However, in light of the Veteran’s limited work history, education, training, and job experience, the Board finds that his service-connected disability renders him unable to secure or follow a substantially gainful occupation. The evidence clearly shows that the Veteran is unemployable. The question for resolution in this appeal is the degree to which nonservice-connected disabilities contribute to his unemployability. Significant uncertainty centers on cognitive symptoms, such as difficulty concentrating and memory loss, which may be attributable to nonservice-connected stroke residuals, but which may also be attributable to the service-connected mental disorder. Dr. Tripi’s opinion does not adequately distinguish these symptoms, but acknowledges a contribution from nonservice-connected disabilities. The November 2017 VA opinion appears to attribute the Veteran’s difficulty concentrating to the Veteran’s service-connected mental disorder. The Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence which does so. Mittleider v. West, 11 Vet. App. 181, 182 (1998) citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996). Accordingly, the cognitive symptomatology cited by the VA examiner and by Dr. Tripi must be attributed to the service-connected disability. Moreover, the finding in the VA examination report that, as a result of his service-connected disability, the Veteran could only be expected to perform simple, repetitive tasks, and could not process more complex instructions, leaves a significant doubt as to whether he could be expected to safely operate heavy machinery, cut timber, or perform other tasks for which he has training and work experience. It is notable that the Veteran told an August 2, 2017, VA neurology examiner that he essentially does not drive any more due to memory problems (Record 06/12/2018 at 80). As noted above, the Veteran is clearly unable to secure or follow a substantially gainful occupation. However, the Board also finds that there is an approximate balance of the evidence regarding whether such occupational impairment is a result of the Veteran’s service-connected disability. With resolution of all reasonable doubt in favor of the claim, the Board finds that the criteria for TDIU on an extraschedular basis have been met. As that represents the full benefit sought on appeal, the Board finds that there is no prejudice resulting from any deficiencies in VA’s duties to notify and assist. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Cramp