Citation Nr: 18158325 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 09-03 324A DATE: December 14, 2018 ORDER A total disability rating based on individual unemployability (TDIU) due to the service-connected posttraumatic stress disorder (PTSD) prior to April 1, 2016, is denied. FINDING OF FACT Prior to April 1, 2016, the Veteran did not meet the schedular criteria for a TDIU based on the PTSD; the record does not reflect that he was unemployable because of his service-connected PTSD; and his employment cannot be considered marginal. CONCLUSION OF LAW The criteria for a total disability rating based on individual unemployability due to the service-connected PTSD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.16 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active service from June 1984 to July 1991, from February 1994 to April 1994, and from April 2003 to October 2003. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that continued a 50 percent rating for PTSD. The Board remanded the claim for increased rating in June 2012 to provide the Veteran with a Board hearing, which took place via videoconference before the undersigned Veterans Law Judge (VLJ) in August 2012. A transcript is of record. The Board remanded the case for additional development in October 2012. It subsequently issued a decision in October 2014 that denied a rating more than 50 percent for PTSD and declined to take jurisdiction of a claim for entitlement to a TDIU based on the service-connected PTSD. The Veteran appealed the Board’s October 2014 decision to the United States Court of Appeals for Veterans Claims (Court) and in an undated Joint Motion for Remand (Joint Motion), the parties requested that the Court vacate the October 2014 Board decision that denied entitlement to a rating more than 50 percent for PTSD. In an October 2015 Order, the Court granted the Joint Motion. In June 2016, the Board remanded the claim for increased rating and a claim for entitlement to a TDIU due to the service-connected PTSD. In a July 2017 rating decision, entitlement to a TDIU was granted effective April 1, 2016. In March 2018, the Board remanded the claim for entitlement to a TDIU due to the service-connected PTSD prior to April 1, 2016, for additional development. 1. TDIU due to PTSD prior to April 1, 2016 In a July 2017 rating decision, entitlement to a TDIU was granted effective April 1, 2016, which was noted by the RO to be the day following the date the Veteran last worked. The Veteran asserts that he is entitled to a TDIU due to his service-connected PTSD prior to this date, specifically November 23, 2007, the date of the underlying increased rating claim for PTSD. See November 2017 statement. In a February 2009 letter, the Veteran reported that his PTSD had resulted in him having to take “stress days” from work and undergoing a work reassignment from his role as a police officer on the street to a school setting. He contends that the reassignment was recommended by his superiors because they recognized his performance was not up to par and that he agreed to the reassignment because he was unable to perform his duties on the street and it would afford him the opportunity to continue his employment and save his career from being tainted by his PTSD. He indicated that the school setting was less stressful and intimidating. In an October 2009 letter, the Veteran’s treating psychologist and psychiatrist at the Providence, Rhode Island, VA Medical Center reported that the Veteran’s current functioning precluded his return to work from October 26, 2009 until at least December 1, 2009. In the VA Form 21-8940 received in May 2010, the Veteran reported that he last worked as a police officer for the City of Attleboro October 9, 2009, which was the date his PTSD affected full-time employment, he last worked full-time, and he became too disabled to work. He indicated that his highest gross earnings per month had been $4,400 and that he had earned $67,000 in 2008. A June 2010 VA Form 21-4192 from the City of Attleboro indicated that the Veteran last worked on October 9, 2009, but was still on the payroll using sick time benefits while waiting for his application for disability retirement to be reviewed. His earnings during the 12 months preceding his last date of employment had been $65,708.26. In a VA Form 21-8940 received in April 2016, the Veteran indicated that he had been employed as a school resource officer at Attleboro High School for 40 hours a week between June 2007 and November 2010, with highest gross earnings of $5,136.66 per month, and as a field inspector at the Department of Motor Vehicles for 30 hours per week from June 2015 to the present, with highest gross earnings of $3,800 per month. His current job was noted to be part-time with a total earned income for the past 12 months of $16,000 and current monthly earned income of $3,800. Records from the Social Security Administration indicate that the Veteran did not have taxed Social Security earnings from 2009 through 2013 but that he had taxed Medicare earnings in 2009, 2010, and 2014. In a December 2015 affidavit, the Veteran clarified that he worked as a police officer from 1995 until October 2009 and was in the field from 1995 until 2007, when he was moved to a high school in the position of a school resource officer due to his PTSD. He indicated that he went on medical leave in October 2009 and remained on leave until November 2010. The Veteran reported that he had not worked full time since leaving the police force and that he was working part-time as a field inspector. In a January 2016 letter, the Veteran’s supervisor at the Department of Transportation reported that the Veteran had been employed since June 22, 2015, and that he had limited contact with people and worked autonomously and independently with little supervision and contact. A February 2016 psychological evaluation report provided an opinion that the Veteran is more likely than not incapable of securing and following substantially gainful employment due to his PTSD. The evaluator indicated the Veteran did not exhibit a sufficient ability to cognitively substitute his PTSD-related thoughts and memories with positive self-assuring cognitions, nor did he appear to have the flexibility and mood stability necessary to secure and sustain gainful meaningful employment. The evaluator concluded that the Veteran was only able to maintain his part time employment for now because he was allowed to work on his own without interaction with others. In March 2016, the Veteran’s attorney asserted that the Veteran “had not earned any income that would be deemed as marginal since 2009.” While acknowledging that the Veteran began working part-time in June 2015, the attorney asserted that the job qualified as marginal employment rather than substantially gainful employment because the accommodations and understanding from his employer showed how protected and sheltered the Veteran was in his current employment. In a VA Form 21-4192 received in October 2016, the Department of Motor Vehicles indicated that the Veteran had worked from June 21, 2015 until March 31, 2016, when he resigned. He had earned $47,315.10 during the 12 months preceding his last date of employment and had worked 37 and one-half hours per week. It was noted that no concessions had been made due to age or disability. In a November 2017 statement, the Veteran’s attorney asserted that the Veteran’s employment for the Attleboro police department between 1995 and October 2009 should be considered marginal from June 2007 until he retired in November 2010. The attorney based this argument on an assertion the Veteran was removed from his position as a field officer in June 2007 after his supervisors recommended he be switched to the position of a school resource officer, a recommendation made after his supervisors noticed a marked difference in his performance due to his PTSD. The attorney reported that as a school resource officer, the Veteran was able to take breaks whenever he needed to, which occurred after having an anxiety attack. The attorney asserted that the Veteran was put on paid leave in October 2009 pending the results of a psychological evaluation and that he was informed in November 2010 that he would not be able to return to work due to his PTSD, which resulted in his retirement. The attorney contended that this period of employment was protected and should be considered marginal. The attorney also asserted that the Veteran was unemployed from November 2010 until June 2015 and that although he attempted to work for the RO in April 2014, he left after two weeks because case review aggravated his PTSD. He did not seek employment after that due to the severity of his PTSD. Finally, the attorney asserted that the Veteran secured employment in June 2015 and left in April 2016 because of his PTSD. Since the employment was for less than one year, it shows the Veteran was unable to maintain substantially gainful employment due to PTSD. In a January 2018 statement, the Veteran’s attorney asserts that entitlement to a TDIU should be considered on an extraschedular basis for the period November 2007 to October 2010 and on a schedular basis as of October 2010. A December 2017 vocational assessment was attached, which the attorney summarized as showing that the Veteran had not been able to secure of maintain substantially gainful employment since June 2007 due solely to his service-connected PTSD, an opinion based on the Veteran’s medical history and lay testimony. The vocational expert was noted to have provided an opinion that the Veteran worked in a protected work environment from June 2007 to November 2010 because the accommodations he was given (reduced responsibilities, extra breaks, and excessive absences) would not be afforded in a competitive work environment. The attorney asserts that this employment should be considered marginal. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2018). Consideration may be given to the Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. Id. In reaching such a determination, 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 law provides that a total disability rating may be assigned where the schedular rating is less than total when the 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 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). In this case, the Veteran is service-connected for a lung disease at 60 percent from October 2010 and a noncompensable condyloma, in addition to the PTSD. The PTSD is rated as 50 percent disabling during the relevant period prior to April 1, 2016. The Veteran’s argument, through his attorney, has been that his he is unemployable due to his PTSD. In the case of a veteran who is unemployable by reason of a service-connected disability, but who fails to meet the schedular percentage standards, the case should be submitted to the Director, Compensation Service, for extraschedular consideration. See 38 C.F.R. § 4.16 (b). For a veteran to prevail on a claim for a total compensation rating based on individual unemployability on an extraschedular basis, it is necessary that the record reflect some factor which places the case in a different category than other Veterans with equal rating of disability. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. This is so because a disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Board acknowledges that the Veteran was not working during certain periods of time prior to April 1, 2016. See e.g., August 2012 hearing transcript; VA Forms 21-8940; records from the Social Security Administration; November 2017 statement. The fact remains, however, that he had periods of employment prior to April 1, 2016, and that during the timeframe when he was not employed (approximately between 2009 and 2014), he was attempting to obtain several degrees. More specifically, in between when the Veteran last worked on the police force and when he tried to get back into the work force in 2014, he completed a bachelor’s degree in 2010 and obtained his master’s degree between 2010 and 2012; he was pursuing a PhD using an online program after that, but that was not completed. In addition, the Veteran also attempted to obtain employment after completing his degrees. More specifically, an August 2012 record (after the Veteran had finished his master’s degree) indicates that he was working with an educational counselor at the college to find a management job. In September 2012, he reported going on job interviews. In short, the Board finds that the Veteran was capable of performing the physical and mental acts required by employment, evident in the fact that he was employed as a police officer in the field until approximately 2007, as a school resource officer from 2007 to 2009, and at the Department of Motor Vehicles from June 2015 until April 2016. In addition, it appears that he was obtaining degrees during periods of unemployment (between 2010 and 2012) and that he attempted to find employment after completion of his masters but was unsuccessful. Unemployment, whether due to enrollment in a degree program or due to unsuccessful attempts to obtain a job after earning a degree, does not equate to unemployability. The Board also notes that an October 2018 VA Form 21-4140-1 indicates that the Veteran had again found employment in April 2016, working 15 hours per week as a teacher. Regarding the assertion raised that the Veteran’s employment as a school resource officer and with the Department of Motor Vehicles should be considered marginal, the Board disagrees. Marginal employment is generally deemed to exist when a Veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(a). The Veteran, who was born in 1966, was under the age of 65 throughout the time period being considered in this appeal. The poverty threshold for one person under the age of 65 was $10,787 in 2007; $11,201 in 2008; $11,161 in 2009; $12,331 in 2015; and $12,486 in 2016. The City of Attleboro police department and the Department of Motor Vehicles have reported that the Veteran earned over $65,000 and over $47,000, respectively, while employed there. These figures are substantially higher than the poverty levels established by the Census Bureau during the time in question. Regarding the assertion raised that the Veteran’s employment as a school resource officer and with the Department of Motor Vehicles should be considered sheltered or protected and, therefore, marginal, the Board again disagrees. It finds that the environments in which the Veteran worked were tied predominantly to the nature of those jobs. The duties of a school resource officer are inherently different from a field officer, and still required interaction with students. The Department of Motor Vehicles specifically indicated that no accommodations had been made for the Veteran. In sum, a TDIU may be assigned where the schedular rating is less than total when the person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). Here, the Veteran has managed to obtain gainful employment and to obtain an advanced educational degree during the period in question. In Faust v. West, 13 Vet. App. 342 (2000), the Court defined substantially gainful employment as “an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the veteran actually works and without regard to the veteran's earned annual income.” While the Veteran may earn less in his job than desired, VA disability ratings are "based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations," 38 U.S.C. § 1155, and "are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1 (2018). K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel