Citation Nr: 19169167 Decision Date: 09/05/19 Archive Date: 09/05/19 DOCKET NO. 12-31 167A DATE: September 5, 2019 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) on a schedular basis from May 21, 2012 to March 13, 2013 is granted. REMANDED Entitlement to TDIU on an extraschedular basis prior to May 21, 2012 is remanded. FINDING OF FACT From May 21, 2012 to March 13, 2013, the Veteran’s service-connected posttraumatic stress disorder and diabetes mellitus with associated bilateral upper and lower extremity peripheral neuropathy precluded him from securing or following a substantially gainful occupation. CONCLUSION OF LAW From May 21, 2012 to March 13, 2013, the criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from July 1972 to October 1981. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in June 2011, August 2017, February 2018 and October 2018 when it was remanded for additional development. The Board notes that the October 2018 decision granted entitlement to service connection for posttraumatic stress disorder (PTSD). A March 2019 rating decision implemented the decision, awarding a 30 percent rating for PTSD, effective from June 3, 2009, and a 100 percent rating from March 3, 2013. The claim for TDIU has been characterized accordingly. 1. Entitlement to TDIU on a schedular basis from May 21, 2012 to March 13, 2013. A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system are considered as one disability. Id. Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to TDIU is based on an individual’s particular circumstance.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (quoting Thun v. Peake, 22 Vet. App. 111, 116 (2008)); see also Todd, 27 Vet. App. at 85-86. Therefore, in adjudicating a TDIU claim, VA must take into account the individual veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering veteran’s 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering veteran’s master’s degree in education and his part-time work as a tutor). Effective May 21, 2012, service connection is in effect for diabetes mellitus with hypertension and erectile dysfunction, peripheral neuropathy of the right and left lower extremities (associated with the diabetes), peripheral neuropathy of the right and left upper extremities (associated with the diabetes), and PTSD, for a combined 70 percent rating. Because the diabetes and peripheral neuropathy of the right and left upper and lower extremities arise from a single etiology, this constitutes a single disability for TDIU purposes. Therefore, since May 21, 2012, the Veteran satisfies the threshold schedular requirement for an award of TDIU benefits under 38 C.F.R. § 4.16(a). What remains to be determined is whether the functional impairment associated with his service-connected disabilities is of such nature and severity as to preclude substantially gainful employment. The evidence is unclear when the Veteran was specifically last employed, but it indicates the Veteran was last employed in approximately January 2007. See, e.g., December 2009 VA Form 21-8940. The evidence shows that the Veteran’s occupational history has predominantly involving working in the freight brokerage industry, but he has also worked as a bail bondsman and in law enforcement. See March 2009 VA treatment record; see also December 2009 VA Form 21-8940. His educational background includes at least some college. See March 2009 private treatment records (indicating two years of college education). For the period from May 21, 2012 to March 13, 2013, the pertinent evidence includes a May 2012 VA treatment record that noted the Veteran’s complaint of pain from the neuropathy in his feet and legs. The Veteran indicated he stays depressed and unmotivated and the slightest stress overwhelms him. He also complained his short-term memory was poor and that learning new information was difficult. A December 2012 VA medical letter from Dr. G. stated that the Veteran’s social, occupational and interpersonal functioning were severely impaired. Furthermore, the Veteran was not able to function or perform a job in proximity of other people and not get distracted or aggravated. Dr. G. related the Veteran could not respond in an emotionally stable manner to constructive criticism from supervisors or co-workers, and his concentration was limited and kept him from completing mildly complicated tasks. It was opined that the Veteran was not able to function in a work setting in a dependable and reliable manner. After a review of the evidence of record, the Board finds, resolving any reasonable doubt as mandated by law (38 U.S.C. § 5107; 38 C.F.R. § 3.102), that the evidence supports the conclusion that the Veteran’s service-connected diabetes and associated bilateral upper and lower extremity peripheral neuropathy, as well as his service-connected PTSD, prevent him from securing and following substantially gainful employment from May 21, 2012 to March 13, 2013. In reaching this determination, the Board notes that the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that determination of whether a veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that is an adjudicative determination properly made by the Board or the RO. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Based on the evidence presented in this case, the Board finds that the functional impairment associated with the Veteran’s service-connected PTSD and diabetes with associated bilateral peripheral neuropathy of the upper and lower extremities, is of such nature and severity as to preclude substantially gainful employment effective from May 21, 2012 to March 13, 2013, given his occupational experience and educational background. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990) (holding that a veteran need only demonstrate an approximate balance of positive and negative evidence to prevail). REASONS FOR REMAND 1. Entitlement to TDIU on an extraschedular basis prior to May 21, 2012 is remanded. Under 38 C.F.R. § 4.16(b), where the percentage requirements of 38 C.F.R. § 4.16(a) are not met, TDIU may be granted on an extraschedular basis in exceptional cases when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability. In Bowling v. Principi, 15 Vet. App. 1, 10 (2001), the United States Court of Appeals for Veterans Claims held that the Board cannot award TDIU under 38 C.F.R. § 4.16(b) in the first instance because that regulation requires that the RO first submit the claim to the Director of Compensation Service for extraschedular consideration. In this case, prior to May 21, 2012, the Veteran did not meet the schedular criteria for consideration of TDIU. Nevertheless, the record reflects that the Veteran has been unemployed since approximately January 2007, and the evidence suggests that his service-connected disabilities rendered him unable to obtain or maintain substantially gainful employment since April 2008. See February 2011 SSA decision (finding the Veteran disabled since April 1, 2008 due to severe impairments of diabetes and PTSD); see also February 2010 lay statement by K.H., former officer manager for the Veteran (stating the Veteran’s business closed due to his inability to continue to do business in a professional manner due to his psychiatric disability); October 2010 Dr. P.O. private medical letter (stating it appears the Veteran’s PTSD has significantly affected his life and employability, probably more so than his diabetes). The Board is precluded from considering in the first instance whether TDIU should be assigned on an extraschedular basis for the period prior to May 21, 2012, and therefore the case must be referred to the Director of Compensation Service for consideration of this issue. The matters are REMANDED for the following action: 1. Refer the issue of entitlement to TDIU to the Director of Compensation Service for a determination in the first instance as to whether the assignment of TDIU on an extraschedular basis is warranted at any period prior to May 21, 2012. 2. Then readjudicate the Veteran’s claim of entitlement to TDIU prior to May 21, 2012. If the benefit sought remains denied, furnish the Veteran and his representative with a Supplemental Statement of the Case and afford them the opportunity to respond before the file is returned to the Board for further consideration. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Marley, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.