Citation Nr: 20045321 Decision Date: 07/08/20 Archive Date: 07/08/20 DOCKET NO. 10-42 696 DATE: July 8, 2020 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) is granted from September 1, 2007 to September 2, 2015 on an extraschedular basis. FINDING OF FACT Resolving all doubt in the Veteran's favor, from September 1, 2007 to September 2, 2015, his service-connected disabilities rendered him unable to secure or follow gainful employment consistent with his educational and occupational background. CONCLUSION OF LAW The criteria for entitlement to a total disability rating based upon individual unemployability (TDIU) prior to September 2, 2015 on an extraschedular basis have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from May 1962 to May 1968 and from January 1976 to January 1980. This matter was previously before the Board of Veterans’ Appeals (Board) on an appeal from an October 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at an April 2018 hearing, and the case was remanded in May 2018. The issue of entitlement to TDIU on an extraschedular basis was remanded by the Board in May 2019. The Board finds that the RO substantially complied its remand directives, and the Board may now proceed with adjudication. 1. Entitlement to a total disability rating based upon individual unemployability (TDIU) prior to September 2, 2015 The Veteran asserts that his service-connected disabilities prevented him from securing or following a substantially gainful occupation prior to September 2, 2015. The Board notes that the Veteran first asserted entitlement to TDIU in an April 2009 lay statement and May 2009 TDIU application. However, entitlement to TDIU may be an element of an appeal for a higher initial rating or a claim for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to a TDIU is raised where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice, 22 Vet. App. at 453. Therefore, when entitlement to a TDIU is raised during the appeal of a rating for a disability, it is not a separate claim but is rather part and parcel of the underlying claim for benefits. Rice, 22 Vet. App. at 454. The Veteran filed a claim for service connection for PTSD and, later, an increased initial rating, in June 30, 2006. This is the current effective date for the Veteran’s PTSD, and the Veteran has submitted evidence that supports the possibility that his service-connected disabilities prevented him from securing or following a substantially gainful occupation from this date. Accordingly, the Board finds that the period on appeal dates to June 30, 2006. TDIU may be assigned when the schedular rating is less than total, where, if there is only one disability, the disability is rated at 60 percent or more, or where, if there are two or more disabilities, at least one disability is rated 40 percent or more and there is sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). From June 2006, the Veteran was subject to a 60 percent combined evaluation for his service-connected disabilities—50 percent for PTSD from June 30, 2006, 20 percent for type II diabetes mellitus, from September 28, 2006, and a noncompensable rating for bilateral hearing loss from June 30, 2006. From September 2, 2015, the Veteran is subject to a 90 percent combined evaluation for his service-connected disabilities and met the criteria for schedular consideration under 38 C.F.R. § 4.16(a). For the period prior to September 2, 2015, the Veteran does not meet the criteria for schedular consideration under 38 C.F.R. § 4.16(a). He may still be entitled to referral for consideration of an extraschedular grant of TDIU, however, if the evidence shows that he is unable to secure or follow a substantially gainful occupation as a result of his or her service-connected disability or disabilities. 38 C.F.R. § 4.16(b). In May 2019, the Board referred this claim to the Director of Compensation and Pension Service for extraschedular consideration. In an April 2020 Memorandum, the Director found that the Veteran was still able to secure and follow a substantially gainful occupation, based primarily on the relevant VA examination reports. While the Director did not find in the Veteran’s favor, the Board will also consider the evidence of record and make its own determination. During the Veteran’s October 2008 VA examination for mental conditions, the VA examiner noted that the Veteran’s PTSD resulted in markedly diminished interest/participation in significant activities, feelings of detachment, restriction in affect, sleep disturbance, irritability, hypervigilance, and exaggerated startle response. During the Veteran’s later October 2008 VA examination for PTSD, the VA examiner indicated that the Veteran’s PTSD did not result in total functional impairment. However, it did cause sleep disturbance, irritability, hypervigilance, and exaggerated startle response. During the Veteran’s August 2009 VA examination for diabetes mellitus, the VA examiner stated that the Veteran’s diabetes did affect his ability to perform work, but he could manage moderate physical or sedentary employment. In October 2009, the Veteran submitted a statement by a private family nurse practitioner (FNP). The nurse opined that the Veteran’s PTSD, which caused chronic sleep impairment, and medication to treat his PTSD, which left him intermittently sleepy, caused him to be unemployable as a driver for safety reasons. An October 2009 statement by a trucking company Safety Director stated that they could not hire the Veteran due to the medications he was taking making him a potentially unsafe driver. In a November 2012 lay statement, the Veteran’s former supervisor stated that the Veteran was very dependable at work but had to resign due to his health and medication. In an April 2009 lay statement, the Veteran asserted that his service-connected diabetes mellitus and PTSD had prevented him from working for the past 7 years. During an August 2009 VA examination for PTSD, the Veteran reported passive suicidal ideation; however, the VA examiner stated that the Veteran’s overall symptomatology had improved since his last examination. The examiner stated that the Veteran’s PTSD resulted in moderate impairment in capacity for occupational capacity; however, many areas of reliability, efficiency, and productivity remained intact. In an October 2009 lay statement, the Safety Director of the Veteran’s last employer stated that the Veteran’s medical history and prescribed medication rendered him an unsafe driver. In a later October 2009 letter, a manager for a trucking company stated that they could not hire the Veteran due to his prescribed medications, the likelihood that they would prevent the Veteran from obtaining necessary credentials, and his status as a potentially unsafe driver. Additionally, in October 2009, a mobile home company turned the Veteran down for a job due to his prescribed medications. In an October 2009 medical statement, a family nurse practitioner (FNP) indicated that the Veteran’s PTSD and prescribed medications made gainful unemployment as a truck driver impossible. The FNP stated that the Veteran should be considered for unemployability given the facts of his case. Similarly, a November 2009 letter indicates that the Veteran was turned down for a job with a Veterans Service Organization (VSO) because the Veteran’s disabilities and medication left the Veteran an unsafe driver, and, therefore, he did not meet the organization’s minimum employment qualifications. Conversely, in a November 2009 physician’s statement, a psychiatrist that had treated the Veteran stated that his PTSD rendered him unable to hold a job consistently. His PTSD symptoms included depression, decreased concentration, intrusive memories, and sleep disturbance, and the medications prescribed to control his symptoms also affected his capacity for following a substantially gainful job. A November 2012 statement from a former employer states that the Veteran worked for them from October 2006 to August 2008, and he was very reliable until he had to resign due to health issues. In a November 2012 TDIU Application, the Veteran stated that he had last worked full-time from October 2006 to August 2007. Before that, the Veteran worked full-time from May 1996 to August 2001. In both instances, the Veteran worked as a driver. The Veteran listed 2007 as the date he became too disabled to work. The Veteran submitted a detailed vocational evaluation by a rehabilitation specialist in April 2018. The highest level of education the Veteran completed was graduating from high school in 1962 and vocational training at a truck driving school in Chicago. The Veteran worked for 8 years at an automotive plant doing assembly work, 6 years driving trucks, 4 years as a psychiatric aide, 4 years as a correctional officer, and 6 months as a van driver. The specialist opined that the Veteran’s PTSD, prescribed medication, diabetes mellitus, and peripheral neuropathy imposed physical and psychiatric limitations on him that left him unable to perform any type of substantial, gainful occupation at any exertional level. The specialist noted that the Veteran’s PTSD resulted in mild memory and focus issues, occasional panic attacks, and difficulty in maintaining effective work and social relationships. The Veteran’s diabetes mellitus and peripheral neuropathy, which affects all four of the Veteran’s extremities, eliminated most physical occupations as the Veteran could not walk or stand more than 2 hours in an 8-hour period. Upon consideration of the record, the Board does not find that the evidence accords with the Director’s conclusion that TDIU on an extraschedular basis is not warranted. Although the Director’s decision is important in that it allows the Board to consider entitlement to an extraschedular TDIU in this decision, it is not binding. 38 C.F.R. § 4.16; Wages v. McDonald, 27 Vet. App. 233, 236 (2015). The Board finds that there is sufficient evidence to conclude that the Veteran’s service-connected disabilities prevented him from securing or following a substantially gainful occupation since September 1, 2007—the date immediately following the Veteran’s last period of documented full-time employment. The Veteran has submitted multiple letters from prospective employers stating that he could not be employed due to his disabilities and prescribed medication, primarily because they rendered him an unsafe driver. While the Veteran might have been able to secure work in a position that did not involve driving, it would have been very difficult for him to travel to and from work without driving. Additionally, the Veteran’s education and training were focused on driving commercially and would not have naturally lent themselves to other fields. Finally, the Veteran submitted several medical opinions supporting the Veteran’s claim for unemployability. While there is evidence weighing against the claim as well, the Board finds that, resolving all reasonable doubt in favor of the Veteran, the evidence weighs in favor of granting the claim. For the period prior to September 1, 2007, the Board finds that there is evidence that the Veteran was still able to work and that his prescribed medications did not yet render him unable to drive safely. Accordingly, the Veteran’s claim for extraschedular TDIU is granted from September 1, 2007, the beginning of the month following his last recorded period of full-time employment. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Hicks, 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.