Citation Nr: 18154233 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 09-14 847 DATE: November 29, 2018 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability prior to April 20, 2009 is denied. FINDING OF FACT Prior to April 20, 2009, the Veteran’s service-connected disability has not been shown to preclude him from securing or following a substantially gainful occupation. CONCLUSION OF LAW Prior to April 20, 2009, the criteria for a TDIU were not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2018). REASONS AND BASES FOR FINDING AND CONLSUION The Veteran had active military service from December 1968 to December 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). By way of background, in a September 2007 rating decision the RO denied entitlement to a TDIU. See September 2007 Rating Decision – Narrative. The Veteran appealed the rating decision and in a January 2013 the Board remanded the issue for further evidentiary development. See January 2013 Remand BVA or CAVC. In July 2013, the RO granted entitlement to a TDIU from April 20, 2009 to May 15, 2013. See July 2013 Rating Decision – Narrative. The Veteran argued that he is entitled to a TDIU prior to April 20, 2009. See November 2013 NOD. In December 2014, the Board remanded the issue and subsequently denied entitlement to a TDIU prior to April 20, 2009 in an October 2017 Board decision. See December 2014 Remand BVA or CAVC and October 2017 BVA Decision. The Veteran appealed the decision to the U.S. Court of Appeals for Veterans Claims (Court). In April 2018, the Court partially vacated the Board decision and remanded the issue of entitlement to a TDIU prior to April 20, 2009 for further proceedings. In October 2012, the Veteran testified at a hearing. The transcript of the hearing is of record. However, the Veterans Law Judge (VLJ) who conducted the hearing is no longer available to participate in the Veteran’s appeal. The Veteran was given another opportunity to appear at a hearing before a VLJ who would decide the claim. However, the Veteran did not invoke his right to appear at an additional hearing, and as such, the Board will proceed with adjudication. See July 2017 Hearing Related. The Board notes that VA attempted to get records from the Social Security Administration (SSA); however, in March 2013, SSA responded that records for the Veteran were destroyed. See March 2013 SSA/SSI Letter. 1. Entitlement to a TDIU prior to April 20, 2009 is denied. 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. See 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.” See 38 C.F.R. §§ 3.340(a)(1), 4.15. TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). An extraschedular total rating based on individual unemployability may be assigned in the case of a veteran who fails to meet the percentage requirements but who is unemployable by reason of service-connected disability. 38 C.F.R. § 4.16(b). If a sufficient rating is present, then it must be at least as likely as not that the veteran is unable to secure or follow a substantially gainful occupation as a result of that disease. See 38 C.F.R. § 4.16(a). The central inquiry is “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The issue is not whether the veteran can find employment generally, but whether the veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Consideration may be given to the veteran’s education, special training, and previous work experience, but not to his age or to the impairment cause by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose, 4 Vet. App. at 363. Where these percentage requirements are not met, entitlement to benefits 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, and consideration is given to the veteran’s background including his or her employment and educational history. 38 C.F.R. § 4.16(b). See Johnson v. McDonald, 762 F.3d 1362 (2014). The Board does not have the authority to assign an extraschedular total disability rating based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). The Board notes that the Veteran is service connected for acquired psychiatric disability rated at 50 percent prior to April 20, 2009. As such, the Veteran is not eligible for TDIU consideration on a schedular basis but can be considered for extraschedular consideration under 38 C.F.R. § 4.16(b). Accordingly, the Board will consider whether referral for extraschedular consideration under 38 C.F.R. § 4.16(b) is warranted. Turning to the relevant evidence, in November 2003, the Veteran initially stated that he stopped working due to incontinence from his prostate surgery. The Veteran submitted a claim of entitlement to a TDIU in November 2006 and alleged that he is unable to secure or follow any substantially gainful occupation due to his service-connected acquired psychiatric disability and other non-service connected disabilities, specifically his neck, spine, and bladder control problems. See November 2006 VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability. In a May 2007 Form 21-8940, the Veteran reported he was no longer able to work or deal with the public due to his severe PTSD, depression, and other health issues, to include constant incontinence. He indicated that his earnings decreased in 2003 and 2004 because of his illness and inability to deal with the public effectively, as he was dealing with severe PTSD, neurotic depression, and urinary incontinence. A review of the records shows that the Veteran has a four-year college degree with a past work history consisting of owning and operating a convenience store with his two brothers. See July 2012 VA Examination. Under the section titled concessions made to employee because of disability, the Veteran stated light lifting due to bladder incontinence. He reported that he sold his store due to sickness and signed up for Social Security Disability benefits. See August 2007 VA 21-4192 Request for Employment Information in Connection with Claim for Disability. A review of the treatment records shows that the Veteran’s service-connected acquired psychiatric disability did not preclude the Veteran from securing and following a substantially gainful occupation prior to April 20, 2009. Specifically, the treatment records show that despite the crying spells, the Veteran’s cognitive functioning was predominantly intact as the Veteran generally had unremarkable findings in various mental status examinations. For instance, in 2006 the Veteran was noted to be casually dressed and was cooperative and pleasant. His attention and concentration was intact and his thought content was linear, logical, and goal directed without flight of ideas or loosening of association. Further, the Veteran had insight and good judgement. The Veteran denied obsessions, delusions, paranoia, hallucinations, suicidal ideation, and homicidal ideation. See April 2008 Medical Treatment Record – Government Facility and July 2012 CAPRI. In June 2007, the Veteran underwent a psychiatric evaluation by Dr. D. In the examination, the Veteran complained of mood swings, irritability, anger, and crying spells. See August 2007 Medical Treatment Record – Non-Government Facility. On examination, the Veteran was noted to be cooperative but distant and tearful. He was neatly and casually dressed for the examination. The Veteran presented a poverty of thoughts and had difficulty relating and his speech revealed frustration. The Veteran had impaired concentration. However, his recent and remote memory was intact and he did not have any difficulty repeating or recalling during the examination. The Veteran’s impersonal judgment was intact and he responded to proverbs in abstract manner. The Veteran denied hallucinations and delusions. Based on the one-time examination, the examiner opined that the Veteran has emotional difficulties originating from his experience in boot camp and is unable to tolerate any stress and is unable to handle any gainful employment. After considering the foregoing, the Board concludes that the most probative evidence does not show that the Veteran was precluded from gainful employment prior to April 20, 2009 solely due to his service-connected psychiatric disorder. As reflected above, in his initial submissions regarding his employability, the Veteran consistently reported that he could not work as a result of the combination of his service-connected acquired psychiatric disorder and non-service connected disabilities, specifically incontinence. Importantly, in a January 2017 statement, the Veteran stated that the most significant reason that he was no longer able to work was his incontinence as a result of his radical proctectomy, which again is not service connected. Additionally, the most probative medical evidence of record does not support the Veteran’s contention that his service-connected acquired psychiatric disability alone precluded gainful employment. The Board gives little probative weight to Dr. D.’s opinion that the Veteran is unable to tolerate any stress and is unable to handle any gainful employment. Dr. D. did not explain why the Veteran was unable to work and it is not apparent from the evaluation how he reached this conclusion. Dr. D. did not discuss the impact of the Veteran’s service-connected disability on the Veteran’s ability to work other than blanketly asserting that he was “unable to tolerate any stress.” As noted above, the treatment records predominantly show of unremarkable mental status examinations. Although Dr. D. noted that the Veteran has impaired concentration, the Board finds that no other treatment records note this deficiency. Further, the Board finds that Dr. D. only evaluated the Veteran once and did not review the longitudinal history of the Veteran’s acquired psychiatric disability. As such, the Board gives low probative weight to the one-time psychiatric evaluation by Dr. D. as it is inconsistent with the contemporaneous evidence of record. The Board observes the Veteran’s attorney’s October 2018 argument that his non-service connected incontinence should be considered as service connected because it is affects his acquired psychiatric disorder. The Veteran’s attorney references Dr. D.’s statement that the Veteran “has had prostate surgery leaving him with urinary bladder incontinence which reminds him of the time he wet on himself while in service.” Despite the Veteran’s attorney’s assertion, a reference to reminding the Veteran of the in-service incident does not suggest that the Veteran’s incontinence is somehow aggravating his acquired psychiatric disability. Further, there is no persuasive evidence to suggest such an association. Accordingly, this argument is without merit. Based on the foregoing, the Board finds that the Veteran is not precluded from securing and following all substantially gainful occupation solely as a result of his acquired psychiatric disorder. As stated above, the most persuasive evidence does not show that the Veteran is precluded from working. Accordingly, the Board finds that the preponderance of evidence weighs against a finding that the Veteran meets the requirements for entitlement to a referral of his TDIU claim for consideration on an extraschedular basis prior to April 20, 2009. As such, the Board declines to remand the claim for referral to the Director of VA Compensation Service for consideration of TDIU on an extraschedular basis. The claim is denied. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Noh, Associate Counsel