Citation Nr: 20042370 Decision Date: 06/23/20 Archive Date: 06/23/20 DOCKET NO. 07-01 315 DATE: June 23, 2020 ORDER Entitlement to a rating of total disability due to individual unemployability based upon service-connected disabilities (TDIU) as of March 24, 2016, but no earlier, is granted, subject to controlling laws and regulations is granted. FINDING OF FACT Resolving all reasonable doubt in the Veteran’s favor, the evidence is at least evenly balanced to support a finding that as of March 24, 2016, but no earlier, the Veteran is unable to secure or follow substantially gainful employment due to his service-connected disability. CONCLUSION OF LAW The criteria for entitlement to a TDIU as of March 24, 2016, but no earlier, is granted, subject to controlling laws and regulations have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1984 to January 1985. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a November 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. This matter has a long procedural history, which shall be recounted below, as useful background information. Ultimately, the only issue on appeal is entitlement to TDIU any earlier than July 22, 2018, i.e.: on an extraschedular basis. As of July 22, 2018, the Veteran is rated at 100 percent for other specified trauma and stress-related disorder, 38 C.F.R. § 4.130, Diagnostic Code 9410, see Rating Decision (Oct. 2018). The October 2018 rating decision also awarded an increase of the initial rating stage and an earlier effective date, now rated at 50 percent from June 27, 2003 until July 21, 2018. Id. The Veteran did not file a Notice of Disagreement within one year of the October 2018 rating decision. As such, the Board concludes that the initial rating for the above psychiatric disorder is final. Furthermore, this psychiatric disorder represents the Veteran’s only service-connected disability, and there is no competent evidence of record to suggest entitlement to special monthly compensation. Effective July 22, 2018, the issue of TDIU is rendered moot by the 100 percent rating. Meanwhile, by way of further background, prior to the promulgation of the above October 2018 rating decision, the disability was first granted service connection in a June 2016 rating decision, at which time the disorder was rated at 30 percent from September 4, 2008 until prior to March 24, 2016, and 50 percent thereafter. See Rating Decision ( June 2016 ). The Veteran filed a timely and valid Notice of Disagreement to this rating decision in October 2016. See NOD ( Oct. 2016 ). Pursuant to the most recent Board remand, dated January 2019, the Veteran’s claim was referred to the Director of Compensation Service for a determination of TDIU on an extraschedular basis at any point prior to July 22, 2018. See VA Memo ( May 4, 2020 ); Advisory Opinion ( May 6, 2020 ). The Board concludes that as the Veteran’s claim for a TDIU from June 2003 until July 2018 has been fully considered under 38 C.F.R. § 4.16(b), the Veteran has been afforded substantial compliance with all previous remand directives, see Stegall v. West, 11 Vet App. 268, 271 (1998), and the Board accordingly asserts jurisdiction over the Veteran’s claim of entitlement to a TDIU prior to July 22, 2018. For the reasons below, the Board determines that entitlement to TDIU is granted effective March 24, 2016, but no earlier. Entitlement to a TDIU as of March 24, 2016, but no earlier, is granted, subject to controlling laws and regulations. The Veteran contends that his service-connected disability renders him unemployable. The Veteran’s only service-connected disability is his other specified trauma and stress-related disorder, which has been rated at 100 percent disabling since July 22, 2018, but at 50 percent disabling prior to that date and effective June 27, 2003. 38 C.F.R. § 4.130, Diagnostic Code 9410, see Rating Decision (Oct. 2018). To the extent that the Veteran previously identified a disabling hernia as contributing to his unemployability, see VA Form 21-8940 (rec’d Dec. 2009), this is not service connected. See Board Decision ( Oct. 12, 2004 ). There is no dispute that effective July 22, 2018, the Veteran meets the schedular requirements for a TDIU, see 38 C.F.R. § 4.16(a), but his 100 percent rating is a higher reward for the same disability. For the period of review from June 27, 2003 until prior to July 22, 2018, the Veteran does not meet the schedular requirements for a TDIU; however, the matter was referred to the Director of Compensation Service in May 2020 for extraschedular consideration. As such, the Board has jurisdiction to award TDIU after referral for extraschedular consideration. Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, 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, provided that the Veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16(a). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. It is the established policy of the Department of Veterans Affairs 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. Id. at § 4.16(b). In this case, the Veteran has only been entitled to schedular consideration for a TDIU since July 22, 2018—while he has received a 100 percent for his psychiatric disorder. Meanwhile, during the period on review, which dates back to June 27, 2003, the Veteran’s disorder was rated at 50 percent, and there are no other service-connected disabilities in the Veteran’s case. The Veteran has met the schedular requirements for TDIU under 38 C.F.R. § 4.16(a) as of July 22, 2018, but prior to that date, the Veteran is eligible for a TDIU on an extraschedular basis, following May 2020 referral to the Director of Compensation Services. The key question at issue is whether the Veteran’s service-connected psychiatric disorder, in and of itself, has rendered him unable to secure or follow gainful employment at any time prior to July 22, 2018, but still during the period under review. The Board ultimately determines that the Veteran’s trauma disorder, by itself, has rendered him unemployable since March 24, 2016, but no earlier. As of this date, the Board finds that the evidence is at least evenly balanced to enable a conclusion that TDIU is warranted; thus, the Board resolves this doubt in the Veteran’s favor. Prior to March 24, 2016, the preponderance of the evidence of record simply does not show any such earlier effective date for a TDIU. The Board accepts the Veteran’s general testimony that his psychiatric disorder renders him unemployable, and that is has been so sufficiently severe as to preclude substantially gainful employment even prior to his 100 percent rating. The Veteran submitted a VA Form 21-8940 in December 2009. See VA Form 21-8940 ( Dec. 2009 ). The Veteran completed three years of post-secondary education ending in January 1991, but he has not had any further education or training. See id. at Questions Nos. 21-23. In the same VA Form 21-8940, he appears to attribute his unemployability to his psychiatric disorder and a nonservice-connected hernia. See id. at Question No. 6. Meanwhile, even though the Veteran stated that he has not worked since May 2006 at the earliest, see id. at Questions Nos. 12-16, subsequent development suggests that he may have been employed as of February 2007. See Correspondence from D.B., Ed.D. (July 28, 2008; rec’d Mar. 25, 2013 ). In the subsequent development of the Veteran’s claim for a TDIU, the Veteran’s claim was remanded in February 2016, due to concerns that he did not receive notice of examinations. See Board Remand ( Feb. 25, 2016 ). The Veteran was afforded an updated VA examination for his psychiatric disorder in March 2016. See C&P Exam ( Mar. 24, 2016 ). The Board notes that the examiner characterized the Veteran’s symptoms as “mild or transient,” see id. at Section I, Question No. 4A, despite enumerating symptoms as severe as difficulty sleeping and going up to four days without sleeping, almost-nightly headaches, being easily startled, irritability, nightmares, and subjective reports of daily visual and auditory hallucinations, id. at Section II, Question No. 2C. On the other hand, the Veteran was observed to have appropriate hygiene, exhibited no objective evidence of hallucinations despite subjective reports, and denied suicidal or homicidal ideation. See id. at Section II, Question No. 6. On account of the above symptomatology reported at and before the March 2016 examination, the Veteran’s disorder was then initially rated at 30 percent prior to March 24, 2016, but 50 percent thereafter. See Rating Decision (June 2016). Prior to the October 2016 NOD, the Veteran submitted new correspondence from D.B., Ed.D. on his behalf. See Correspondence from D.B., Ed.D. (May 9, 2016; rec’d June 27, 2016 ). According to this letter, but never prior, the Veteran’s psychiatric disorder appears to have manifested in suicidal ideations. Id. See also Lay Statement from D.R. (Sept. 26, 2016, rec’d Oct. 3, 2016 ); Lay Statement from Veteran’s Brother, W.H. (May 8, 2016, rec’d June 27, 2016 ); but cf. VA Treatment Record ( Nov. 9, 2016 ) (denying suicidal ideation). The question of employability is ultimately a legal one, not a medical one. The evidence, as described and discussed above, shows that as of March 24, 2016, but no earlier, the Veteran is not able to maintain the type of employment consistent with his education and work history solely because of his service-connected disability. The Board cannot ignore compelling evidence that after March 24, 2016, the Veteran’s treatment providers first noted suicidality. Furthermore, in a June 2016 rating decision, the Veteran was afforded a staged increase from 30 percent to 50 percent effective March 24, 2016, though this has been rendered moot by the July 2018 rating decision. Even though the psychiatric rating is no longer on appeal, and even though the July 2018 rating decision assigned an earlier effective date for the 50 percent rating and a later 100 percent rating without awarding a 70 percent rating stage, the Board asserts jurisdiction over TDIU as warranted prior to July 22, 2018. The Board resolves all doubt here in the Veteran’s favor by concluding that as of March 24, 2016, the Veteran’s service-connected psychiatric disorder, by itself, was sufficiently severe to warrant TDIU. (Continued on the next page)   As such, entitlement to TDIU is warranted on the basis of service-connected other trauma disorder, effective March 24, 2016, but no earlier. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1991). The Board has fully and sympathetically considered whether an effective date earlier that March 24, 2016 may be warranted for TDIU. However, for the reasons above, there is simply no evidence of suicidal ideations prior to March 24, 2016, nor is there sufficient evidence to suggest that the Veteran’s psychiatric disorder—by itself but otherwise notwithstanding a mere 50 percent rating—rendered the Veteran incapable of securing or maintaining substantially gainful employment until March 24, 2016 at the very earliest. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael B. Engle, 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.