Citation Nr: 18151797 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 09-07 228 DATE: November 20, 2018 ORDER Entitlement to a total disability rating for compensation based on unemployability of the individual (TDIU) for post-traumatic stress disorder (PTSD) is granted. FINDING OF FACT Entitlement to a TDIU has been met for the entire appeal period as the Veteran has been unable to secure or follow a substantially gainful occupation due to his service-connected PTSD. CONCLUSIONS OF LAW The criteria for entitlement to an extra-schedular evaluation under total disability rating for compensation based on unemployability of the individual (TDIU) has been met from November 21, 2006. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1966 through January 1969 including service in the Republic of Vietnam for which he was awarded the Combat Infantry Badge. The Veteran also had additional reserve service with various periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) through March 2005. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2007 rating decision issued by a Department of Veterans’ Affairs (VA) Regional Office (RO). In March 2017, the Board remanded the Veteran’s evaluation for his service-connected PTSD for the RO to address the reasonably raised issue of TDIU and for the Director of Compensation Service to render a recommendation on whether an extraschedular TDIU was warranted. 1. Entitlement to a total disability rating for compensation based on unemployability of the individual (TDIU). A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.16. Consideration may be given to a veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). An award of TDIU does not require a showing of 100 percent unemployability. See Roberson v. Principi, 251 F.3d 1378, 1385 (2001). The central inquiry is whether a veteran’s service-connected disabilities alone are of sufficient severity to render the veteran unable to secure or follow a substantially gainful occupation. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system are considered as one disability. Id. Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. If the percentage requirements of 38 C.F.R. § 4.16 (a) are not met, TDIU may be granted on an extra-schedular basis in cases when the Veteran is unable to secure and follow a substantially gainful occupation by reason of a service-connected disability. 38 C.F.R. § 4.16 (b). However, the Board cannot grant an award of a TDIU on an extra-schedular basis under 38 C.F.R. § 4.16 (b) in the first instance because that regulation requires that the RO first submit the claim to the Director of the Compensation Service (Director) for extra-schedular consideration. See Wages v. McDonald, 27 Vet. App. 233 (2015). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to TDIU is based on an individual’s particular circumstance.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (quoting Thun v. Peake, 22 Vet. App. 111, 116 (2008)); see also Todd, 27 Vet. App. at 85-86. Therefore, in adjudicating a TDIU claim, VA must take into account the individual veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering veteran’s 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering veteran’s master degree in education and his part-time work as a tutor). The ability to work sporadically or just a few hours a day is not considered to be substantially gainful employment. Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). When there is an approximate balance of evidence for and against an issue, all reasonable doubt will be resolved in the Veteran’s favor. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Relevant to the current claim, a total disability rating may be assigned on an extraschedular 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). In this regard, the record reflects that, for the relevant period prior to October 30, 2008, the Veteran’s combined disability rating was 50 percent for PTSD. Consequently, the Veteran did not meet the threshold schedular criteria for consideration of a TDIU pursuant to 38 C.F.R. § 4.16 (a); however, as noted in the Board’s March 2017 remand, the evidence suggested that his service-connected PTSD may have rendered him unable to secure or follow a substantially gainful occupation. Therefore, the Board remanded the appeal for referral to the Director for consideration of assignment of an extraschedular TDIU under the provisions of 38 C.F.R. § 4.16 (b), for the period prior to October 30, 2008. In July 2018, the Director reviewed the record and opined that entitlement to an extra-schedular TDIU for the applicable period was not warranted. Upon a review of the record, the Board finds that the Veteran’s PTSD rendered him unable to obtain and maintain substantially gainful employment for the period on appeal from November 2006 through the present. The Veteran began seeking treatment for PTSD in or about 1996 while he was still employed. See December 1996 VA Examination. September 2006 private treatment records from K.A., certified trauma specialist and professional social worker, noted that the Veteran was experiencing “short term memory losses and concentration impairment which interferes in his ability to remember simple instructions and to complete simple tasks.” See September 2006 Medical Assessment Update. The provider diagnosed PTSD and noted that the Veteran “becomes easily angered by his supervisors and has to walk away rather than hurt someone.” Id. The report found that the Veteran lacked the ability to work with others. K.A. provided an updated letter to the Veteran in November 2008 which continued to report that the Veteran lacked the ability to work with others and added that the Veteran was “unable to function in most areas of his life.” At a June 2007 VA Examination, the Veteran reported that he completed 12 years of school and had two years of college education. After the Veteran’s active service, he worked at the Red River Army Depot, to include in management, for 38 years and left the job in late 2006. See June 2007 C&P Examination. The Veteran reported that he left the job because he could not “deal with his bosses and his peers anymore.” Id. The examiner noted that the Veteran “lost the ability to work closely with others, interact with family and friends and enjoy recreational activities.” Id. Shreveport Veterans Affairs Medical Center (VAMC) records indicate that the Veteran reported in November 2007 that his mental health condition was worsening due to the stress of being unable to find work. During an October 2008 VA Examination, the Veteran reported that he had not worked and had been able to obtain a job. The Veteran also reported to the examiner that he would be unable to manage his household if his spouse were to become unavailable. While the Veteran reported being of retirement age, the examiner noted a psychiatric condition contributed to his retirement from Red River Army Depot. Id. A November 2008 letter from a Readjustment Counselor at the Shreveport VAMC indicated that the Veteran “has trouble interacting with the public which affects his ability to gain and maintain meaningful employment.” The counselor concluded that a work environment would cause a worsening of the Veteran’s PTSD symptoms. The record reflects that the Veteran obtained employment at a warehouse pulling parts which did not require him to interact with many people; however, the Veteran was laid off. See January 2009 and March 2011 Shreveport VAMC treatment records. The Board finds the temporary employment to be marginal as the Veteran has two years of college education and was previously a manager at Red River Army Deport where he was employed for 38 years. Additionally, the evidence indicates that the Veteran was unable to remain employed and has since that time been unemployed. See Shreveport VAMC treatment records. See also Moore v. Derwinski, 1 Vet. App. at 358. Based on the foregoing, the Board finds that the evidence of record is at least in equipoise as to whether the Veteran’s service-connected PTSD prevented him from securing or following substantially gainful employment during the relevant appeal period. In this regard, the Board finds the opinion of the private examiner and VA examiners regarding the Veteran’s social and occupational impairment to be highly probative and the Veteran’s lay statements consistent and compelling. In addition, while the Director provided a negative opinion, the opinion is based solely on one statement from the Veteran in October 2008 that he retired due to age when the overwhelming evidence of record indicated that he also retired due to his psychiatric condition. These are not mutually exclusive and being of retirement age has never been a sufficient basis for denying TDIU, in fact, age cannot be considered as a factor in granting the benefit. See 38 C.F.R. § 4.16. See also Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). Therefore, resolving all doubt in the Veteran’s favor, the Board finds that for the period on appeal, his service-connected PTSD prevented him from securing or following substantially gainful employment. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3, 4.16(a) and (b); Gilbert, 1 Vet. App. at 53-56. Therefore, entitlement   to a TDIU on an extraschedular basis prior From November 21, 2006, is warranted. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G.Rouse, Associate Counsel