Citation Nr: 1820729	
Decision Date: 04/04/18    Archive Date: 04/16/18

DOCKET NO.  12-05 003A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to a total disability rating based on individual unemployability (TDIU).


REPRESENTATION

Veteran represented by:	Florida Department of Veterans Affairs


WITNESSES AT HEARING ON APPEAL

Veteran and Spouse


ATTORNEY FOR THE BOARD

S. Hoopengardner, Associate Counsel


INTRODUCTION

The Veteran served on active duty from August 1951 to October 1954.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

The Veteran testified at a January 2016 Board hearing before the undersigned Veterans Law Judge (VLJ) in St. Petersburg, Florida.  A transcript of the hearing is of record.

In March 2016, the Board decided a claim for entitlement to an increased disability rating for posttraumatic stress disorder (PTSD).  The Board also found that a claim for entitlement to a TDIU was raised by the record pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009).  The Board remanded the TDIU claim.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).


FINDING OF FACT

The Veteran was not unable to secure and follow a substantially gainful occupation as a result of his PTSD.


CONCLUSION OF LAW

Entitlement to a TDIU is not warranted. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.16 (2017).



REASONS AND BASES FOR FINDING AND CONCLUSION

 Background and Legal Criteria 

The Veteran is service connected for one disability, PTSD.  As referenced in the Introduction, in March 2016 the Board decided a claim for entitlement to an increased disability rating for PTSD, finding that a 50 percent disability rating, but no higher, was warranted.  A May 2016 rating decision implemented the Board's decision and the 50 percent disability rating was assigned from October 6, 2008.  

A schedular TDIU may be assigned where the schedular rating is less than total and it is found that a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities that are of a certain combined disability rating, which was not present in this case. See 38 C.F.R. § 4.16(a) (2017). 

When the schedular TDIU requirements are not met, as in this case, entitlement to a TDIU on an extraschedular basis may still be granted.  38 C.F.R. § 4.16(b) (2017) states that "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."  The Board notes that neither the Agency of Original Jurisdiction (AOJ) nor the Board is authorized to assign an extraschedular TDIU in the first instance under 38 C.F.R. § 4.16(b).  See Wages v. McDonald, 27 Vet. App. 233 (2015).  In this regard , 38 C.F.R. § 4.16(b) (2017) states that "rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the" schedular TDIU requirements.  Accordingly, the issue before the Board is more specifically whether referral to the Director of Compensation Service for consideration of an extraschedular TDIU is warranted.

When determining whether a TDIU is warranted, 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 or her age or to the impairment caused by nonservice-connected disabilities.  See 38 C.F.R. §§ 4.16, 4.19 (2017); see also Van Hoose v. Brown, 4 Vet. App. 361 (1993).

Analysis 

The Veteran has one service connencted disability, PTSD.  PTSD is rated 50 percent disabling and does not meet the scheduler criteria for TDIU.

The determinative issue in this case is whether the Veteran is unable to secure and follow a substantially gainful occupation by reason of his service-connected PTSD.  Upon review, the Board finds that the Veteran was not unable to secure and follow a substantially gainful occupation by reason of his PTSD.  The Board finds that the symptomatology of the Veteran's PTSD is not of such severity to render him unable to secure and follow a substantially gainful occupation.  As such, referral to the Director of Compensation Service for consideration of an extraschedular TDIU is not warranted.

The Veteran previously performed physical work in assembly and moving for approximately 40 years that appeared to involve limited social interaction.  In this regard, in the September 2017 statement the Veteran stated that he worked alone as an assembler (which evidence indicated he did as a job for approximately 30 years).  The Board finds that the evidence does not indicate that, by reason of his PTSD, the Veteran could not perform similar work.      

The Board affords significant probative value to the August 2009 VA PTSD examination report.  This examination was conducted by a psychologist, who after examination of the Veteran noted that there was occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to PTSD signs and symptoms, but with generally satisfactory functioning (routine behavior, self-care, and conversation normal).  The Board affords significant probative value to the August 2009 VA examination report, as a psychologist examined the Veteran during the period of increased symptom severity and directly commented on the impact of the Veteran's PTSD on his occupational functioning.  While the August 2009 VA PTSD examination was conducted during the period of increased symptom severity, the level of occupational and social impairment noted was not of such severity to indicate that the Veteran would be unable to secure and follow a substantially gainful occupation as a result of his PTSD.

The Board acknowledges that the evidence indicated that the Veteran's PTSD resulted in occupational and social impairment.  This is reflected in the 50 percent disability rating assigned throughout the appeal period, which contemplates occupational and social impairment with reduced reliability and productivity pursuant to Diagnostic Code 9411.  In addition, 38 C.F.R. § 4.1 (2017) provides that "the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses."  The assigned 50 percent disability rating therefore contemplates and compensates the Veteran for the resulting occupational impairment from his PTSD.  While not discounting the Veteran's symptomatology, the evidence, however, does not indicate that he was unable to secure and follow a substantially gainful occupation by reason of his PTSD.

In sum, the Board finds that the Veteran was not unable to secure and follow a substantially gainful occupation as a result of his PTSD.  As such, the Board concludes that entitlement to a TDIU is not warranted and the Veteran's claim is therefore denied.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.16 (2017).

ORDER

Entitlement to a TDIU is denied.



____________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs