Citation Nr: 20034480 Decision Date: 05/18/20 Archive Date: 05/18/20 DOCKET NO. 14-36 207 DATE: May 18, 2020 ORDER From March 9, 2010, entitlement to total disability rating based on individual unemployability (TDIU), on an extraschedular basis, is granted. FINDING OF FACT Beginning March 9, 2010, the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected PTSD. CONCLUSION OF LAW The criteria for a TDIU from March 9, 2010, on an extraschedular basis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16(b), 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1965 to September 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from Department of Veterans Affairs (VA) Regional Office Decisions. This matter was previously before the Board in April 2018. The claim was remanded for the RO to refer the Veteran’s claim to the Director, Compensation and Pension Service, for consideration of an extraschedular TDIU. In March 2020, the Director submitted an advisory opinion on extraschedular TDIU. Thus, the Board finds that the RO substantially complied with the April 2018 Board remand directive and that the matter has been properly returned to the Board for appellate consideration. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran contends his service-connected disabilities have rendered him unable to secure or follow a substantially gainful occupation prior to March 10, 2011. Total disability means that there is present any impairment of mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.15. Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). See also Faust v. West, 13 Vet. App. 342 (2000). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the United States Court of Appeals for Veterans Claims (Court) explained that substantially gainful employment contains economic and noneconomic components. The economic component means “an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person,” while the noneconomic component requires consideration of a veteran’s ability to secure or follow that type of employment. Id. In making this determination, consideration may be given to factors such as the veteran’s level of education, special training, and previous work experience, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A veteran is totally disabled if his service-connected disability or combination of service-connected disabilities is rated at 100 percent pursuant to the Schedule for Rating Disabilities. 38 C.F.R. § 3.340(a)(2). Even if a veteran is less than 100 percent disabled, he still is deemed totally disabled under the Schedule for Rating Disabilities if he satisfies two requirements. 38 C.F.R. § 4.16(a). First, the veteran must meet a minimum percent evaluation. If he has one service-connected disability, it must be evaluated at 60 percent or more. If he has two or more service-connected disabilities, at least one disability must be evaluated at 40 percent or more and the combined evaluation of all the disabilities must be 70 percent or more. The following will be considered as one disability with respect to the minimum percent evaluation: (1) disabilities of one or both upper extremities or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system (e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric), (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. Second, the veteran must be found to be unable to secure and follow a substantially gainful occupation as a result of his service-connected disability or disabilities. Id. Where a veteran does not meet the percentage evaluation requirements under 4.16(a), he still may be deemed totally disabled on an extraschedular basis under 38 C.F.R. § 4.16(b) when the evidence nonetheless indicates that the veteran is unemployable by reason of his service-connected disabilities. Under such circumstance the matter is referred to the Director of the Compensation and Pension Service (“Director”) for consideration. Id.; see also Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). Extraschedular TDIU consideration requires contemplation of the following factors: severity of the veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). Although the Board does not have the authority to award an extraschedular TDIU prior to referral to the Director, the Board has jurisdiction to review and award extraschedular ratings in claims that have been denied by the Director. See Kuppamala v. McDonald, 27 Vet. App. 447 (2015). In determining whether a TDIU is warranted, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Initially the Board notes, prior to March 10, 2011, the Veteran was service- connected for post-traumatic stress disorder (PTSD) evaluated at 50 percent effective March 31, 2005. The Veteran’s combined evaluation was 50 percent effective March 31, 2005. In this case, the Veteran’s only disability was not evaluated at 60 percent. Therefore, he does not meet the percentage rating standards for schedular TDIU. 38 C.F.R. § 4.16(a). Accordingly, the Board finds that entitlement to a TDIU for the period prior to March 10, 2011 is not warranted on a schedular basis. Nevertheless, the Board must consider whether the evidence warrants entitlement to a TDIU on an extraschedular basis under the provisions of 38 C.F.R. § 4.16(b). After the Board’s April 2018 remand directive, the RO referred the Veteran’s claim to the Director, Compensation and Pension Service, for consideration of an extraschedular TDIU. In March 2020 the Director submitted an advisory opinion on extraschedular TDIU which is discussed below. In an April 2005 Social Security Administration (SSA) determination letter the primary diagnosis was lumbar degenerative disc disease (DDD). No other diagnosis was listed. In a May 2005 letter from the SSA, the Veteran was awarded disability benefits beginning August 2005. In October 2005 VA treatment records, the Veteran reported he is no longer working due to back problems. He had surgery in July but lost his job when he could not return to work in 60 days. He reported he is “drawing social security disability” but is “having difficulty coping with being disabled.” On a March 9, 2010 VA examination, the Veteran reported retiring due to physical (back disability) and psychiatric (PTSD) issues. The examiner found the Veteran is no longer able to work due in large part to symptomatology associated with his service-connected PTSD. In a March 2011 VA psychology consultation, the Veteran reported he was forced into retirement due to a back injury. On December 20, 2011 the Veteran filed a VA 21-8940 form (application for TDIU). The application indicated PTSD prevented him from securing or following any substantially gainful occupation. The Veteran’s education consists of a high school diploma with no specialized training. He asserts the first date these disabilities affected his full-time employment and the date he last worked was in February 2005. Prior work experience included full time work as a code inspector from July 2002 to February 2005 and a director of public works from July 1995 to April 2002. An October 2018 rating decision granted a TDIU effective March 10, 2011, per the April 2018 Board decision. In a February 2020 memorandum to the Director, the decision review officer (DRO) recommended granting a TDIU on an extraschedular basis from March 31, 2005, the date of receipt of the PTSD claim. In a March 2020 advisory opinion, the Director of Compensation Service, determined that entitlement to TDIU on an extra-schedular basis prior to March 10, 2011 is not warranted. The Director specifically found “the medical evidence of record clearly indicates the Veteran discontinued working full-time when he was unable to return to work following surgery for a non-service-connected back condition.” The decision was based on review of the medical evidence as discussed above. The Board has reviewed all of the lay and medical evidence of record in conjunction with the applicable laws and regulations and finds the evidence to be in relative equipoise as to whether the Veteran has been unemployable due to his service-connected PTSD. Although the evidence reflects the last date of employment was in February 2005, a determination as to when the Veteran stopped participating in substantially gainful employment does not automatically determine the earliest possible effective date. The Board finds the Veteran is entitled to a TDIU on an extraschedular basis from March 9, 2010. A claim for TDIU is part and parcel of the claim for an increased rating. See Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). The Veteran filed for an increased rating for his PTSD on March 2, 2011. An October 2012 rating decision increased the Veteran’s PTSD from 50 percent to 70 percent, effective March 10, 2011. That decision deferred TDIU. The TDIU was deferred based on the March 2010 VA examination. An October 2018 rating decision granted TDIU on a schedular basis effective March 10, 2011. The Veteran’s TDIU claim is tied to his March 2, 2011, increased rating claim. Generally, except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. For increases in disability, the effective date will generally be the date of receipt of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). Otherwise, the effective date may be assigned beginning from the earliest date as of which it is factually ascertainable based on all evidence of record that an increase in disability had occurred if a complete claim or intent to file a claim is received within 1 year from such date, otherwise, date of receipt of claim. 38 C.F.R. § 3.400 (o)(2); Gaston v. Shinseki, 605 F.3d 979, 980 (Fed. Cir. 2010). In this case, service connection has previously been established for PTSD in February 2011; a March 9, 2010 VA examination found the Veteran was unable to work due in large part to his PTSD symptomatology; the Veteran filed for an increase in March 2, 2011; an October 2012 rating decision increased the Veteran’s PTSD from 50 percent to 70 percent and deferred TDIU. Therefore, the earliest possible date for the award of retroactive benefits of TDIU is March 9, 2010. Based on facts found of an increase in the PTSD disability, a TDIU on an extraschedular basis from March 9, 2010 is warranted. Although the February 2020 memorandum to the Director from the DRO recommended granting a TDIU on an extraschedular basis from March 31, 2005, the date of receipt of the PTSD claim, the law on effective dates does not permit this. As noted above, the evidence of record does not indicate the Veteran is unemployable due to PTSD until March 2010 and the TDIU claim was associated with his March 2011 increased rating claim. In fact, the Veteran did not apply for a TDIU until December 2011. The Veteran is receiving the earliest date possible, March 9, 2010, based the retroactive applicability of 38 C.F.R. § 3.400(o)(2). Additionally, in 2005, the SSA records and the Veteran’s reports in October 2005, indicated the Veteran’s unemployability was only related to the DDD, not PTSD symptomatology. As such, resolving reasonable doubt in his favor, the Board finds that the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected PTSD. Therefore, a TDIU on an extraschedular basis is warranted subject to the laws and regulations controlling the award of monetary benefits, effective March 9, 2010. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Jackman, Associate 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.