Citation Nr: 20037500 Decision Date: 06/02/20 Archive Date: 06/02/20 DOCKET NO. 12-14 578 DATE: June 2, 2020 ORDER Entitlement to an extraschedular total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to July 28, 2010 is granted. FINDING OF FACT For the period prior to July 28, 2010, the evidence is in equipoise as to whether Veteran’s service-connected disabilities render him unable to secure and follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for an extraschedular TDIU prior to July 28, 2010 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1962 to June 1965. This matter comes before the Board of Veterans’ Appeals (Board) from an October 2010 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). This case was most recently before the Board in June 2018. At that time, the Board granted a schedular TDIU from July 28, 2010, forward; and remanded the issue of entitlement to an extraschedular TDIU for the period prior to that date. The development actions ordered by the Board in the June 2018 remand have been completed and the case has returned for adjudication. Entitlement to an extraschedular total disability rating based on individual unemployability (TDIU) due to service-connected disabilities The Veteran has alleged that he is entitled to a TDIU for the entire period for which he has been service-connected for posttraumatic stress disorder (PTSD), that is since August 30, 2004. Since the Veteran was granted a TDIU for the period from July 28, 2010, forward, the issue before the Board is limited to entitlement to a TDIU prior to that date. A total disability rating may be assigned, where the schedular rating is less than total, when it is determined 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). Total disability ratings for compensation may be assigned pursuant to 38 C.F.R. § 4.16(a) where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of 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 and/or disabilities resulting from common etiology or a single accident are considered as one disability. Id. The Veteran’s sole service-connected disability for the period on review is PTSD. For the period from August 30, 2004, to February 7, 2005, the Veteran’s PTSD was rated as 30 percent disabling. For the period from February 7, 2005, to July 28, 2010, the Veteran’s PTSD was rated as 50 percent disabling. Thus, the Veteran’s combined disability rating did not meet the schedular threshold percentage requirement for consideration of a TDIU under 38 C.F.R. § 4.16(a). Nonetheless, even when the above threshold percentage requirements are not met, entitlement to a total rating, on an extraschedular basis, may be granted in exceptional cases, when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. §§ 3.321(b), 4.16(b). The Board must determine whether the Veteran is precluded from engaging in substantially gainful employment (i.e., work that is more than marginal, which permits the individual to earn a “living wage”) as a result of service-connected disabilities. See Moore v. Derwinski, 1 Vet. App. 356 (1991). To prevail in a claim for a TDIU, the record must reflect circumstances, apart from nonservice-connected conditions, that place the Veteran in a different position than other veterans who meet the basic schedular criteria. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question is whether the Veteran, in light of his service-connected disabilities, is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court defined the term "unable to secure and follow a substantially gainful occupation" in § 4.16(b) as having two components: one economic and one noneconomic. 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. The non-economic component includes consideration of the following: the Veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. 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). 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). Here the Veteran indicates that his PTSD resulted in irritability and anger outbursts that made him unemployable. He specifically has claimed that his anger outbursts caused him to lose his job as a union representative in 1995. The Veteran’s records from the Social Security Administration (SSA) indicate that he has a tenth-grade education. In addition to working as a union representative, where the Veteran filled out grievances and negotiated contracts for close to fifteen years, the Veteran also had employment as a carpenter for 8 months in 1997 and attempted to work as a sales representative at a hardware store in 1999. The record does not indicate any work or attempted work since that time. The Veteran’s treatment records indicate that he was treated for PTSD for the entire period on review. He had symptoms of irritability, nightmares, night sweats, sleep impairment, anxiety, depression, occasional suicidal ideations, and short-temperedness. A September 2004 Mental Health Consult documented that the Veteran was unable to maintain employment and his personal and past professional relationships had been negatively impacted by his short temper and irrational thought process. A VA examination in April 2009 noted the additional impairment of short-term memory. Statements from the Veteran, his wife, and his brother all indicate the Veteran has recurrent nightmares with restlessness. His symptoms are reported to worsen with the occurrence of thunder or lightning. The Veteran’s brother recounted two episodes of flashbacks that were triggered by a forested environment and a helicopter flying overhead. An August 2010 mental health treatment note indicated that the Veteran’s PTSD impacted his ability to perform work tasks; noting that the Veteran had been unable to work in large part because of his PTSD irritability, poor impulse control, poor judgment, and difficulties in social situations. As noted above, the Veteran applied for SSA benefits in December 2000. The Veteran represented to SSA that he left the job due to pain in his neck, shoulder, knees, back, and heart problems he associated with the stress of the job. The Veteran indicated he left his job as a carpenter because of pain in his neck, shoulder, knees, and back. The Veteran also represented to SSA that he attempted to work at a hardware store in May 1999, but that he had to quit during training due to thyroid cancer. Ultimately, SSA determined that a combination of degenerative joint disease of the cervical spine, residuals of a thyroidectomy, bilateral knee surgeries, and lumbar spine surgeries significantly affect his ability to engage in basic work activities. During a June 2015 VA examination, the Veteran reported that he was fired from his last job and did not elect to continue work because of difficulties with irritability and anger. The Veteran reported working three 8-hour days per week as a volunteer doing general maintenance in the campground where he and his spouse stay. The examiner indicated that the Veteran’s PTSD did not render him unable to secure or follow substantially gainful employment. The examiner noted the Veteran’s claim for SSA benefits was based primarily on physical health issues. The examiner also indicated that while the Veteran mentioned stress in relation to his SSA benefits, the primary issues related to ongoing physical health problems were claimed as causing all sorts of functional impairment including sleep and inability to physically engage in work activities. The examiner added that it was puzzling that currently none of these problems are reported as present or causing any functional impairment and all problems are now reported as related to PTSD. The examiner noted that while the Veteran reported problems with authority as the reason for him quitting his job as a union representative, he did not report more broad-based interpersonal conflict on the job. Although the Veteran’s statement that he left his job as union representative due to anger problems is seemingly contradicted by his statements to SSA, the Board does not exclude the possibility that both physical and mental symptoms were the cause of his leaving his job. The Veteran represented that the job was stressful, and his treatment records show a history of irritability and short-temperedness. However, the Veteran has made no mention of stress or anger problems relating to his leaving the job as a carpenter. Instead, the record only indicates the Veteran left that job due to physical symptoms, which are not related to a service-connected disability. The Director, Compensation Service, concluded in a July 2019 administrative decision that the Veteran was not entitled to a TDIU prior to July 28, 2010, including on an extraschedular basis. The rationale for this decision was that the Veteran reported that he decided not to seek further employment after being fired in 1995. The opinion noted that current evidence shows the Veteran does volunteer physical work and that the record presents no evidence that the severity of the PTSD condition prevented the Veteran from securing and following any substantially gainful employment, prior to July 28, 2010, due to his service-connected PTSD. Finally, the Veteran submitted a medical opinion in March 2020, from Dr. B. C., a private psychiatrist. Dr. B. C. concluded that the Veteran was unable to work due to his active PTSD symptoms and mental illness since 1995. As rationale, she pointed out the possibility that the Veteran downplayed the role of his mental health issues at the time he became unemployed in 1995. The examiner indicated that PTSD symptoms included problems with anger, irritability, impaired interpersonal relationships, isolation, depressed mood, poor concentration, poor sleep, hypervigilance, illogical thought processing, nightmares and intrusive thoughts. Dr. B. C. pointed out that the Veteran engaging in volunteer work since 2012 is not indicative of him being able to maintain meaningful employment. She reported that in his volunteer position, he spends most of his time alone and is not forced to deal with customers or project deadlines. The Board finds that the Veteran’s PTSD would have at least as likely as not limited his ability to interact with the general public and limited his ability to interact in an adversarial environment. He would have also had difficulty with complex job tasks as he had a sleep impairment and later a reported short-term memory impairment. While the Veteran has been able to do volunteer work, it appears that this activity does not require interaction with others. There is medical evidence of record that attributes the Veteran’s inability to secure and follow substantially gainful employment to his physical, rather than mental limitations. The Veteran’s SSA records show his own reports of the cause of him leaving his job due to physical limitations. The June 2015 examiner found that the Veteran’s inability to secure and follow employment was not due to his service-connected PTSD. The March 2020 opinion of Dr. B.C. concludes that the Veteran’s PTSD alone causes unemployability and that this was so prior to 2010. The examiner reviewed and discussed the evidence of record and noted the multiple symptoms of the service-connected psychiatric disorder. The examiner also explained that the volunteer work was not indicative of the Veteran being capable of maintaining employment as the Veteran spent the majority of his time alone and he was not forced to deal with customers or manage project deadlines. The Board finds that the March 2020 opinion of Dr. B.C. is probative. The Board finds that the evidence is at least in equipoise as to whether the Veteran’s symptoms of PTSD rendered him unemployable prior to July 28, 2010. (Continued on the next page)   Therefore, resolving any doubt in favor of the Veteran, entitlement to an extraschedular TDIU for the period prior to July 28, 2010, is granted. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Marsh II, 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.