Citation Nr: 18153604 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 04-43 919 DATE: November 28, 2018 ORDER A total disability rating based on individual unemployability due to service-connected disability (TDIU), including on an extra-schedular basis, prior to November 12, 2004, is denied. FINDING OF FACT Prior to November 12, 2004, the Veteran’s service-connected disabilities did not render him incapable of securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU, including on an extra-schedular basis, prior to November 12, 2004, were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1966 to June 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2004 rating decision by the Department of Veterans Affairs (VA) Regional Offices (RO). The Veteran filed a Notice of Disagreement (NOD) in August 2004. He was issued a Statement of the Case (SOC) in December 2004 and the Veteran filed his substantive appeal via a VA Form 9 in December 2004. The Veteran’s claim for a TDIU was received by VA in February 2004. This case was before the Board in March 2016, when the Board, in pertinent part, remanded the TDIU claim for further evidentiary development. An October 2016 rating decision granted a TDIU, effective from November 12, 2004, the date the Veteran met the schedular criteria for a TDIU rating. However, as the rating period for consideration for the TDIU issue is from one year prior to February 10, 2004, the date of receipt of the claim, the issue of whether a TDIU rating is warranted prior to November 2004 remains for consideration. The claim was remanded by the Board in February 2017 for additional development. Legal Criteria Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is 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, or if there are two or more disabilities, there shall be at least one 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). When the percentage requirements are not met, entitlement to benefits on an extra-schedular basis may be considered when the Veteran is unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities, and consideration is given to the Veteran’s background including his employment and educational history. 38 C.F.R. § 4.16(b). In determining whether unemployability exist, consideration may be given to the Veteran’s level of education, special training and previous work experience, but it may not be given to his age or to impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.314, 1.16, 4.19. Consideration may be given to a Veteran’s level of education, special training, and previous work experience in arriving at whether a TDIU rating is warranted, but the Veteran’s age or the impairment caused by non-service connected disabilities may not be considered in such a determination. 38 C.F.R. §§ 3.341, 4.16, 4.19. Factual Background In this case, the Veteran is service connected for the following disabilities: (1) posttraumatic stress disorder (PTSD) with anxiety disorder and neurotic skin disorder (2) hiatal hernia, and (3) erectile dysfunction. By way of occupational history, the Veteran has submitted two different formal TDIU applications. The first application submitted was received by VA on February 10, 2004. On this application, the Veteran noted that he worked as a field engineer from 1999 to 2001. The Veteran also noted that he performed facilities work from 1998-2002 and worked as an assistant manager from 2000-2003. The second TDIU application was received by VA in April 2005. This application shows that the Veteran worked from 1999 to 2002 and part time at a delicatessen department from 1995 to 2004. Both TDIU applications stated that the Veteran was unable to work due to PTSD. By way of medical history, in an April 2003 PTSD Questionnaire the Veteran wrote that he had experienced nightmares since the September 11, 2001 World Trade Center attacks. A May 2003 VA psychiatric examination report shows a global assessment functioning (GAF) score of 55 to reflect the symptomatology of anxiety disorder, which included worries about heath, anxiety arising from memories of the attack on the World Trade Center, irritability, and depressed mood. The examiner stated that the Veteran also has symptoms of temper outbursts, suspiciousness, and belief in possession of paranormal powers, and cannot be considered as symptoms of the service connected anxiety disorder. The examiner noted that if the Veteran could find a job, which would be difficult considering his psychiatric disorder, he may have a higher GAF score, as joblessness was contributing to his sense of guilt and worthlessness. A VA psychiatric examination in June 2003 showed that the Veteran was fully oriented and well groomed, and that his speech was rapid and relevant. There was no evidence of delusions or hallucinations and no thought disorder or inappropriate behavior. The Veteran’s memory was intact. The Veteran’s affect was restricted. The Veteran’s mood was noted as “depressed.” The Veteran was noted to have a GAF score of 55, denoting moderate impairment. Private treatment notes from July 17, 2003 by Dr. D.M. state that the Veteran was laid off while out on disability and states that he feels depressed. The Veteran’s VA skin examination in June 2003 showed no worsening of skin symptoms. The Veteran’s April 2004 VA examination regarding his erectile dysfunction showed no worsening of symptoms. Treatment notes from the VA medical center from May 21, 2003 to December 6, 2004 show a GAF score of 50 to 55. Private treatment notes from Dr. D.M. dated January 13, 2004 state that the Veteran exhibited confusion. An April 2004 VA examination regarding the Veteran’s hiatal hernia showed no evidence of dysphasia to liquids or solids, occasional epigastric pain, and symptoms unchanged from the prior examination. The Veteran was found to be disabled by the Social Security Administration (SSA) effective June 29, 2004. During a May 2004 VA psychiatric examination, it was noted that the Veteran stopped working at a supermarket deli about two weeks prior to the examination. He had previously been working five days per week, four hours per day. He reported taking occasional days off from his part-time job, sometimes because of anxiety or depression, but indicated generally adequate attendance and work performance until two or three weeks prior to the examination, when pain from his nonservice-connected knees caused forced him to stop working altogether. The Veteran did not attribute his current unemployment to his psychological problems. The Veteran underwent a neuropsychiatric evaluation in June 2005, which stated that in 2002, he was involved in a motor vehicle accident during which he suffered a brief loss of consciousness, and has had two blackouts since the incident. The Veteran was diagnosed with acute PTSD and cognitive and memory impairments for which the etiology was unclear. A VA medical opinion as to the degree of employability due to the Veteran’s service connected post-traumatic stress disorder with anxiety disorder prior to November 12, 2004 was obtained in March 2018. The examiner noted that the Veteran was a poor reporter due to vascular dementia. The examiner based his opinion on a records review and a telephone interview with the Veteran’s daughter. The VA examiner reported that it appears that the Veteran’s service-connected mental health condition worsened across time and that it negatively affected the Veteran’s employability. The examiner also noted that experiencing the September 22, 2001 attacks aggravated the service-connected mental health disorder and the Veteran’s employability, but that it would be with only mere speculation to opine specifically about the degree of impairment due to the service-connected mental health condition upon the Veteran’s employability before November 12, 2004. A VA medical opinion as to the degree of employability due to the Veteran’s service connected hiatal hernia and the Veteran’s service connected erectile dysfunction prior to November 12, 2004 was obtained in April 2018. Based on a review of the Veteran’s records, the VA examiner determined that the Veteran’s erectile dysfunction has no impact upon his ability to secure/engage in/ and maintain substantially gainful employment (sedentary or physical). In addition, the examiner opined that the Veteran’s gastroesophageal reflux disease (GERD) has no impact on the Veteran’s ability to secure/engage in/and maintain substantially gainful employment (sedentary or physical). The examiner noted that the Veteran’s prior employment for the telephone company and as a clerk in a delicatessen would not be impacted by these conditions. Analysis Initially, the Board notes that the Veteran is service connected for the following disabilities: (1) PTSD with anxiety disorder and neurotic skin disorder, rated 10 percent from August 1, 1977, and 50 percent April 11, 2003; (2) hiatal hernia, rated 10 percent from August 1, 1977, and at 30 percent from November 12, 2004; and (3) erectile dysfunction, rated 0 percent from April 11, 2003. Thus, for the specific period on appeal (prior to November 12, 2004), the Veteran has not met the schedular criteria for a TDIU outlined above. However, the Veteran could be referred for an extraschedular evaluation under 38 C.F.R. § 4.16 (b), if the Veteran is deemed to be unemployable due to service connected disabilities. Therefore, the key determination, then, is whether the Veteran was unemployable during the period in question. The most probative evidence of record shows that the Veteran’s service connected disorders did not render him unemployable at any point before November 12, 2004. The only favorable evidence showing an inability to work during this time includes the Veteran’s personal statements on his TDIU applications, which are contradicted by the Veteran’s own statements during the May 2004 VA psychiatric examination that psychological problems did not contribute to his unemployability, that he only missed a few days due to anxiety, and that he stopped working in approximately May 2004 due to his nonservice-connected knee disorder. While the Veteran was noted to have difficulty finding a job in the May 2003 VA psychiatric examination report, the examiner reported that working would increase the Veteran’s GAF score, which indicates that the Veteran was not only able to work, but would benefit from employment from a psychological standpoint. Significantly, the Board notes that the Veteran has been found to be disabled by the SSA from June 29, 2004. However, the SSA decision does not specify what disorders render the Veteran disabled. A June 15, 2004 statement by Dr. J.M. mentions that diabetes mellitus, hypothyroidism, severe osteoarthritis, sciatica of the left lower extremity, hypertension, hypercholesterolemia, and anxiety all contribute to a significant disability. However, there is no indication that these prevent the Veteran from obtaining employment, and more specifically, if the service connected conditions in and of themselves prevent employment. Because the most probative evidence of record shows that the Veteran’s service-connected disabilities did not render him incapable of securing or following a substantially gainful occupation prior to November 12, 2004, the claim cannot be referred for an extraschedular evaluation and therefore must be denied. APRIL MADDOX Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Hoover, Associate Counsel