Citation Nr: 1822362 Decision Date: 04/12/18 Archive Date: 04/25/18 DOCKET NO. 11-30 458 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU) prior to December 7, 2011. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD T. Carter, Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from January 1980 to December 1983. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In a June 2013 VA rating decision, the issue of entitlement to a TDIU due to service-connected posttraumatic stress disorder (PTSD) with attention deficit hyperactivity disorder (ADHD) was granted, effective from December 7, 2011. In July 2016, the Board, in part, determined that the issue of entitlement to a TDIU prior to December 7, 2011 was raised in connection with the claim for an initial higher rating for PTSD with ADHD, decided the claim for an initial higher rating for PTSD with ADHD on the merits, and remanded the TDIU claim prior to December 7, 2011 for additional evidentiary development. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The case has been returned to the Board for further appellate review. FINDINGS OF FACT 1. The date of claim for entitlement to a TDIU due to service-connected PTSD with ADHD is September 16, 2009. 2. The Veteran's schedular disability rating for service-connected PTSD with ADHD (his only service-connected disability) did not meet the minimum percentage requirements in 38 C.F.R. § 4.16(a) for consideration of a TDIU on a schedular basis from September 16, 2009 to December 6, 2011. 3. The Veteran's service-connected PTSD with ADHD did not render him unable to secure and follow substantially gainful employment at any time from September 16, 2009 to December 6, 2011. CONCLUSION OF LAW The criteria for entitlement to a TDIU prior to December 7, 2011 have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.114(a)(3), 3.304(f), 3.400(p), 3.340, 3.341(a), 4.16, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). In a March 2014 statement, the Veteran's representative asserted that TDIU should have been granted with an effective date in September 2011, rather than December 2011. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155. All veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. For VA purposes, total disability exists when there is any present impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.16. A total disability rating for compensation may be assigned, where the schedular rating is less than total, when a veteran is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of 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. § 4.16(a). Nevertheless, even when the percentage requirements are not met, entitlement to TDIU on an extra-schedular basis may be granted in exceptional cases when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). "Substantially gainful employment" is defined 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 a veteran actually works and without regard to a veteran's earned annual income. See Faust v. West, 13 Vet. App. 342 (2000). The determination as to whether TDIU is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-32 (1991). The existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded. 38 C.F.R. § 4.16(a). Age may not be considered as a factor in evaluating unemployability. 38 C.F.R. §§ 3.341, 4.19. The veteran's service-connected disabilities, employment history, education and vocational attainment, and all other factors bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). In order to prevail on an extra-schedular basis, the record must reflect some factor that takes the case outside the norm. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether one can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. 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). For VA purposes, the term "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91, 57 Fed. Reg. 2317 (Jan. 21, 1992). On October 16, 2009, VA received the Veteran's request for entitlement to service connection for PTSD. In a May 2011 VA rating decision, the issue of entitlement to service connection for PTSD with ADHD was granted, effective from September 16, 2009 (one year prior to the date of claim). See 38 C.F.R. §§ 3.304(f), 3.400(p), 3.114(a)(3). During the course of the appeal for an initial higher rating for service-connected PTSD with ADHD, the Veteran's representative requested entitlement to a TDIU in a December 2011 statement. In a June 2013 VA rating decision, the issue of entitlement to a TDIU was granted, effective from December 7, 2011. In July 2016, the Board determined that the issue of entitlement to a TDIU prior to December 7, 2011 was part of the claim for an initial higher rating for service-connected PTSD with ADHD. Rice, 22 Vet. App. at 447. As a result, the Board finds the date of claim for entitlement to a TDIU is September 16, 2009. From September 16, 2009 to December 6, 2011, the Veteran was service connected for PTSD with ADHD at 50 percent disabling. Pursuant to 38 C.F.R. § 4.16(a) where one service-connected disability is present, the Board finds the Veteran did not meet the minimum percentage requirements for consideration of a TDIU on a schedular basis from September 16, 2009 to December 6, 2011. As a result, the Board considers whether there is evidence to warrant assignment of a TDIU rating on an extra-schedular basis, pursuant to 38 C.F.R. § 4.16(b), at any time from September 16, 2009 to December 6, 2011. Review of the record includes the following pertinent documents related to the claim on appeal. Records received from Social Security Administration (SSA) include the following pertinent evidence. In a December 2009 psychiatric review technique report, the examining physician concluded the Veteran is able to understand, remember, and carry out instructions at a simple level; however, is limited by "erratic emotional functioning" and impairment would interfere with sustaining minimal time concentration. Following a December 2009 mental status examination, the examining physician concluded the Veteran "has been able to maintain long-term employment in the past in labor positions but due to his current injuries it may be unlikely that he would be able to sustain these tasks." Use of speculative language diminishes the proactivity of the physician's opinion. See Obert v. Brown, 5 Vet. App. 30, 33 (1993); see Warren v. Brown, 6 Vet. App. 4, 6 (1993) (Medical evidence that is speculative, general or inconclusive in nature cannot support a claim.). In a January 2010 mental residual functional capacity assessment report, the examining physician concluded the Veteran "cannot complete simple routine work-related tasks in a normal workday/workweek without interference from psychological symptoms. In July 2010, the Veteran underwent a private neuropsychological evaluation for purposes of assisting in vocational counseling and guidance. He reported graduating from high school, receiving special training in communications during his period of active service, participating in many songwriting seminars, and hoping to attend college to study social work. He reported previous employment included touring with bands as a guitarist and writer and odd jobs in construction and acting when available, and he has not worked consistently since 2004. The Veteran denied ever being terminated from a job or having a history of problems related with co-workers and employers. Following clinical testing, the private physician concluded the Veteran demonstrated the motivation and abilities to meet his goals and the cognitive and academic abilities to return to college; however, due to weaknesses in reading and comprehension and attentional difficulties, the Veteran may need the assistance of a tutor and American with Disabilities Act (ADA) accommodations to help him complete college level courses. It was further noted that the Veteran will be successful in completing college coursework if he puts forth consistent effort, maintains sobriety, and continues with ongoing healthcare services. In a June 2011 statement, the Veteran reported he was a good worker before he left for active service but has not been able to hold a job since he returned. At a July 2011 VA examination for PTSD, the Veteran reported being currently in school for a degree in communications with an emphasis on film. He also reported usual occupation as musician/entertainer, not retired, and has been unemployed for two to five years. Following the clinical evaluation, the VA examiner concluded the following: The Veteran's reported irritability, intrusive memories, hypervigilance, and concentration difficulties would likely decrease work efficiency and ability to perform occupational tasks only during periods of significant stress if he were currently employed. [The Veteran] is currently a full-time student and performed at a level to be included on the Dean's List at his school last semester. In the December 2011 statement, the Veteran's representative reported, in part, the following: It is the [V]eteran's contention . . .. [that] his mental disorder, related to PTSD, presents an exceptional case in which the rating should be based, as far as practicable, upon the average impairment of earning capacity. . . . Therefore, it is contended that the PTSD is profoundly underrated as it presents impairment with the [V]eteran's ability to . . . concentrate well enough to complete any type of educational program geared toward securing substantially gainful employment or to obtain or maintain a substantially gainful occupation. In a November 2011 statement, received by VA in December 2011, a private physician noted treating the Veteran since October 2010 and concluded the Veteran is not able to work full-time in any type of gainful employment due to the PTSD symptoms. In a February 2012 VA Form 21-4192 (Request for Employment Information), the Veteran's previous employer reported the Veteran worked for 12 days in February 2010, performed clean-up work, and was fired due to inability to complete tasks and hard time with other employees. In an attached February 2012 VA Form 21-4138, the previous employer reported hiring the Veteran as an independent contractor for a brief period in February 2010 for after-hours custodial work. It was noted that the Veteran had issues completing standard tasks and was often unable to communicate with co-workers. The previous employer concluded that the Veteran was not eligible for re-hiring because, based on his belief, the Veteran's mental health issues were too extensive for the Veteran to actively participate and complete the tasks asked of him in a standard work environment. In a February 2012 VA Form 21-4138, the Veteran reported he has never held a job for very long and worked as an independent contractor completing roofing work after hurricane Katrina, but has not been able to work since 2007. He noted trying a clean-up job for a short period in February 2010 but was fired. In a February 2012 VA Form 21-8940 (Application for Increased Compensation Based on Unemployability), the Veteran documented the following employment: roofing contractor from January 2006 to June 2007 for 60 hours per week. He noted that his service-connected PTSD prevents him from securing or following any substantial gainful occupation. This disability affected his full-time employment in June 2006, became too disabled to work in January 1998, last worked full time in December 2007, his highest earned income in the past 12 months was $40,000, and tried to obtain employment since he became too disabled to work in February 2010 doing clean-up at a coffee shop in February 2010 for 15 hours per week. The Veteran noted his highest level of education is one year of college and took some courses to engage with people more in 2010 but did not complete them. Pursuant to the July 2016 Board remand, the case was referred to the Director of Compensation Service for extra-schedular consideration. In an August 2017 opinion, the Director concluded the following: Although the Veteran is unemployed, the objective medical evidence of record fails to establish that he was precluded from employment prior to December 7, 2011. The medical evidence of record shows the Veteran experiences irritability, intrusive memories, hypervigilance, and problems with concentration, which would impact his prior employment as a roofing contractor. Medical records from [SSA] noted that impairment from the Veteran's mental disorder would interfere with his sustaining minimal time concentration. However, the record does not demonstrate that the Veteran was precluded from performing sedentary employment. The symptoms of the Veteran's service-connected PTSD . . . have been taken into account and are considered in the application of the relevant criteria in the rating schedule. His level of impairment is consistent with the currently assigned evaluation. In this regard, it is noted that the General Rating Formula for Mental Disorders in the rating schedule provides for evaluation of an individual's occupational and social impairment. Accordingly, we find that the regular schedular standards as applied in this case adequately compensate the Veteran for his overall disability picture, and that the grant of an extra-schedular evaluation is not warranted. Review of the evidentiary record, with the application of reasonable doubt, does not satisfactorily demonstrate that the Veteran was unable to secure or follow substantially gainful employment due to his service-connected disability prior to December 7, 2011. Therefore, a grant of extra-schedular entitlement is not warranted. Review of VA treatment records document the Veteran's unemployment status and report of doing well in school, as well as ongoing difficulty with depressed mood and concentration. In June 2017, VA received a copy of the Veteran's Bachelor of Arts degree earned in August 2014. While the Board does not wish to minimize the nature and extent of the Veteran's overall disability, after a full review of the record, the Board finds that the evidence is against the claim on appeal. The Board acknowledges that a private physician concluded in a November 2011 statement that the Veteran is not able to work full-time in any type of gainful employment due to the PTSD symptoms. Nevertheless, the remaining pertinent evidence of record provides more probative evidence to the contrary. As discussed above, while the Veteran was unemployed during the appeal period prior to December 7, 2011, with the exception of his temporary employment in February 2010, he was enrolled in school and reportedly doing well. In fact, he completed school and earned a Bachelor of Arts degree in August 2014. Moreover, the Director of Compensation Service concluded in August 2017 that the evidentiary record did not indicate the Veteran's service-connected PTSD with ADHD precluded him from performing sedentary employment. The Board notes that the Compensation Service's decision is nonbinding on the Board. See Kuppamala v. McDonald, 27 Vet. App. 447 (2015). In this case, the Board finds the Director's statement to be well reasoned and entitled to probative weight to be considered with other evidence of record. Additionally, the Veteran's field of study was communications with focus on film, which lends itself to sedentary employment as opposed to manual labor or other physically demanding employment. As a result, the Board finds that the pertinent and more probative evidence of record does not demonstrate that the Veteran's service-connected PTSD with ADHD, alone, was of sufficient severity to render him unable to secure and follow substantially gainful employment at any time during the appeal period. The criteria for entitlement to a TDIU at any time prior to December 7, 2011 on an extra-schedular basis is not warranted in this case. ORDER Entitlement to a TDIU prior to December 7, 2011 is denied. ____________________________________________ D. Martz Ames Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs