Citation Nr: 21001084 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 08-39 767 DATE: January 7, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) on an extraschedular basis from June 4, 2007 is granted. FINDING OF FACT Resolving all reasonable doubt in the Veteran's favor, he was unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities as of June 4, 2007. CONCLUSION OF LAW The criteria for entitlement to a TDIU, on an extraschedular basis, as of June 4, 2007, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 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 April 1966 to April 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran requested a Board videoconference hearing in his March 27, 2017 appeal. Subsequently, in an April 8, 2019 letter, the Veteran withdrew his request for a Board hearing. Under these circumstances, the regulations consider the hearing request to have been withdrawn. 38 C.F.R. § 20.704 (e). Entitlement to a TDIU prior to July 26, 2011. The Veteran asserts that he is entitled to a TDIU prior to July 26, 2011, to include on an extraschedular basis. In a May 2009 rating decision, the Veteran was denied an increased rating for his service-connected hearing loss. In a January 2012 rating decision, the Veteran was granted TDIU on a schedular basis, effective July 29, 2011. In an October 2014 decision, the Board remanded the matter of entitlement to a TDIU prior to July 26, 2011 for referral to the Director of Compensation and Pension Service or other appropriate authority for consideration of whether the Veteran is entitled to a TDIU under 38 C.F.R. § 4.16(b) prior to July 26, 2011. In a November 2019 decision, the Board denied entitlement to TDIU prior to July 26, 2011, to include on an extraschedular basis. The Veteran appealed that denial to the United States Court of Appeals for Veterans Claims (Court), which granted a Joint Motion for Remand (JMR) in August 2020. A TDIU may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities provided that, if there is one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16 (a). The issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. See, Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev'd on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Although VA must give full consideration, per 38 C.F.R. § 4.15, to "the effect of combinations of disability," VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner's opinion. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16 (a). The effective date for an increased rating for disability compensation will be the earliest date as of which it is factually ascertainable that an increase in disability occurred if a claim is received within one year from such date; otherwise, the effective date is the date of receipt of the claim. 38 U.S.C. § 5110 (b) (2); 38 C.F.R. § 3.400 (o) (2). A TDIU claim is a claim for increased compensation, and the effective date rules for increased compensation apply to a TDIU claim. See, Hurd v. West, 13 Vet. App. 449 (2000). When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to a TDIU will be considered to have been raised by the record as "part and parcel" of the underlying claim. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Here, the Veteran has been service connected for bilateral hearing loss at 0 percent from June 29, 2005 and for bilateral tinnitus at 10 percent from June 29, 2005, with a total combined evaluation of 10 percent from that date. The Veteran was subsequently service connected for PTSD at 30 percent from June 4, 2007 with a 40 percent combined evaluation as of that date), 70 percent from July 26, 2011, and at 100 percent from May 16, 2017. As of July 26, 2011, the Veteran had a total combined evaluation of 70 percent, and the Veteran has been in receipt of a TDIU on a schedular basis since that date. Accordingly, the Veteran did not meet the minimum schedular requirements for TDIU prior to July 26, 2011. See 38 C.F.R. § 4.16(a). Therefore, the only basis for the assignment of a TDIU prior to July 26, 2011 is on an extraschedular basis. See 38 C.F.R. § 4.16(b). A January 10, 2007 VA treatment record notes the Veteran reported that he lost his job due to downsizing in late 2004. He further reported that he "has always been sort of an anxious worrier, but [had] noticed it [had] gotten worse over the past couple of years." He then reported increased irritability, impatience, quick temper and difficulty staying asleep. He stated that he has several friends but no social life. A May 9, 2007 VA treatment record notes the Veteran reported improvement in his symptoms, stating that he "still has problems dealing with stressful situations, but nothing like in the past." He further reported that he was "more aware of his behavior and its effect on others and feels less irritability and anger." In his June 4, 2007 application for compensation, the Veteran asserted that his hearing loss, hypertension, knees, atrial fibrillation, mitral regurgitation and depression prevented him from working. A November 19, 2007 VA treatment record notes the Veteran reported that he had been keeping himself busy by working around his place and traveling, but also noticed an increase in being short-tempered, elaborating that "it just comes out of the blue", that he "just fl[ies] off the handle" and "get[s] frustrated." A November 20, 2007 VA treatment record notes the Veteran reported noticing a "pattern of irritable which has persisted throughout most of the summer." He stated that he was "snapping at his spouse quite a lot." It was further noted that he "participated in a number of activities during the course of the summer involving family and friends." A persistent pattern of irritability was noted. A January 30, 2008 VA treatment record notes the Veteran reported feeling more aggressive. He also reported that he had been working 7 days a week helping to renovate his house and was feeling increased stress. A March 5, 2008 VA treatment record notes the Veteran reported "feeling much more relaxed" than at his prior session. He further reported that a remodeling project had been completed and that it was the source of his increased aggressiveness. He stated that he "doesn't handle stress well, especially deadlines, and usually finds himself getting more irritable during those periods of time." It was noted that he was planning a trip to the Caribbean in June. A March 19, 2008 VA treatment record notes the Veteran reported ongoing initial insomnia, bad dreams, restless sleep, waking up often, daytime tension, irritability and poor frustration tolerance. He then stated that he read an article about PTSD that described him. He then stated that he enjoys gardening vegetables and sitting on the beach, but reported "[l]ittle socialization." A January 8, 2009 VA treatment record notes the Veteran reported less intense bad dreams, restless sleep, tension, irritability and frustration on gabapentin. A February 6, 2009 VA treatment record notes the Veteran reported that "his tinnitus sometimes gets so loud that he is unable to hear conversations and there are times when he feels stuffed up and unable to hear." On February 17, 2009, VA received a claim for an increased disability rating for his service-connected bilateral hearing loss. The Veteran was afforded a VA hearing loss examination on May 2, 2009 in which the Veteran reported that he sometimes feels pressure in his ears which prevents him from hearing at all. It was noted that the Veteran wears “hearing instruments” that help him hear. It was noted that his hearing loss has "significant effects" on his occupation. The Board notes that this is the first assertion in the record in which it is argued that the Veteran’s ability to work was affected by a service-connected disability. A May 14, 2009 VA treatment record notes the Veteran reported less intense bad dreams, restless sleep, tension, irritability and frustration when on gabapentin. He further reported being "[d]isturbed by constant tinnitus and decreased hearing." A December 2, 2009 VA treatment record notes the Veteran reported sporadic nightmares, restless sleep, tension and irritability on gabapentin. An April 26, 2010 letter from Gulf Coast Audiology notes the Veteran reported having communication difficulties in all listening environments. It was then noted that audiological assessment revealed a mild to severe, sloping, sensorineural hearing loss bilaterally with excellent word recognition ability. The Veteran was afforded a VA PTSD examination in October 2010. The Veteran reported, among other symptoms, avoiding crowds, difficulty being close and "significant difficulty controlling his temper." He further stated that he "feels extremely angry and... has taken his irritability out on his friends and family for a number of years." A December 9, 2010 VA treatment record notes the Veteran felt little interest or pleasure in doing things and felt depressed nearly every day. It was also noted that he had thoughts that he would be better off dead several days. A December 27, 2010 VA treatment record notes the Veteran reported that the recent death of this nephew in a hunting accident triggered a flare of nightmares, restless sleep and irritability despite his use of gabapentin. It was further noted that he was "[d]isturbed by ongoing tinnitus and decreased hearing that makes him feel unsafe." A December 29, 2010 VA treatment record notes the Veteran was "stressed by [the] recent death of [his] nephew in [a] hunting accident". A May 6, 2011 VA treatment record notes the Veteran had "fewer flares of nightmares, restless sleep, and irritability on gabapentin" and that he was "[l]ooking forward to summer and his South Carolina Vet Center group." A July 26, 2011 letter from a therapist at the Vet Center notes the Veteran had been a client since July 29, 2009 and that his "overall ability to function normally is severely impaired because of his service-connected PTSD." The therapist stated that the Veteran “did not have the same look [in September 2010] that he does today in July of 2011” and noted that he had become more withdrawn and more irritable. It was then noted that he “could not possibly work around anyone now and the temper that he was well known for when he did work, would probably prevent him from being hired at this time.” It was then noted that the Veteran's "mood is too volatile for him to be around others on any extended basis" and that he "suffers from high-anxiety and near panic when around others." It was then noted that he has withdrawn from most activities and "does not possess the necessary psychological or physical tools to get or maintain employment." On July 29, 2011, VA received a private psychiatric evaluation from Dr. P. B. Mullen notes that the Veteran reported that after leaving Vietnam his "nerves were totally shot" and "remained emotionally unpredictable and irritable." It was noted that the Veteran's career was spent managing steel mills and was "famous...for having an unpredictable mood". He reported that "workers knew when to approach and when to avoid him." His daughter reported that "[t]here was always a lot of yelling and screaming and swearing" as he "always had a terrible temper." It was then noted that the Veteran's symptoms were jumpiness, irritability, social reclusiveness, some numbness, unpredictable temper, and impaired relations with his family. The Veteran further reported feeling uncomfortable being around people and that his symptoms have worsened over the prior year, stating that he "had tried to bury himself in work and work as much as he could but now he is retired, he is with his wife all day long, just living with the memories." The doctor stated that the Veteran "could not possibly work around anyone now and the temper that he was well known for, when he did work, would probably prevent him from being hired at this time." The examiner then stated that when "he was working there was a way he could focus himself but now, without that, his PTSD is growing and growing more and more as time passes." The Board notes that a March 2017 response from VA's Compensation Service Director recommended against awarding extraschedular TDIU prior to July 26, 2011. However, the Board finds that recommendation lacking substance and ultimately unconvincing because it doesn't explain its conclusion and does not consider or discuss the positive evidence in the evidence discussed above even while specifically citing them. The Board notes that in Ray v. Wilkie, the Court defined the term "unable to secure and follow a substantially gainful occupation" in § 4.16(b) to have 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 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. See, Ray v. Wilkie, 31 Vet. App. 58, 72-73 (2019). In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the Court noted that the claimant need not be a total "basket case" before finding that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. Here, as noted above, the evidence of record reflects that the Veteran has a high school education with one year of college and has no experience outside of steel mills, at which he spent 34 years in upper management. The evidence also reflects that the Veteran’s employment ended in 2004 due to downsizing, and not due to any of his service-connected disabilities. The Board notes that the evidence also reflects that a dominant feature of the Veteran’s PTSD has been his irritability. It was noted in the July 29, 2011 evaluation from Dr. P. B. Mullen that during his career he was "famous...for having an unpredictable mood" and that "workers knew when to approach and when to avoid him." It was further noted that jumpiness, irritability, social reclusiveness, unpredictable temper, and impaired relations with his family were symptoms of his PTSD. Of particular note is the report from the Veteran that he "had tried to bury himself in work and work as much as he could but now he is retired, he is with his wife all day long, just living with the memories." The doctor stated that the Veteran "could not possibly work around anyone now and the temper that he was well known for, when he did work, would probably prevent him from being hired at this time." The examiner then stated that when "he was working there was a way he could focus himself but now, without that, his PTSD is growing and growing more and more as time passes." Here, the Board finds that that the combined effects of his hearing loss, tinnitus and irritability which is caused by his PTSD have been of such severity at all times relevant to this appeal that it is highly unlikely that the Veteran would be able to gain or maintain substantially gainful employment. Though his previous employer apparently tolerated a degree of angry outbursts from the Veteran, it would not be reasonable to expect such tolerance from any new employment gained by the Veteran. Further, the type of work for which the Veteran would be qualified took place in an environment in which not being able to hear would likely present a safety issue. As noted above, the Veteran initially asserted he was unable to work in his June 4, 2007 claim for service connection for PTSD. As there was no pending appeal for an increased rating at this time, entitlement to TDIU could not be inferred as an issue at that point. See generally, Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of the claim concerning "downstream" issues, such as the compensation level assigned for the disability and the effective date). However, in July 2011, within a year of the January 2011 rating decision granting service connection for PTSD, the Veteran submitted new evidence regarding the severity of his PTSD. As such, the January 2011 rating decision was not final, and a valid increased rating claim was created, and eventually granted in a January 2012 rating decision. Thus, as of July 2011, entitlement to TDIU was raised by the record as part of his increased rating appeal. Rice, 22 Vet. App. at 45354. See also, Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011) (holding that a new claim for an increased rating filed during the appeal period may constitute new and material evidence under § 3.156(b), in which case it relates back to the original claim). In light of the foregoing, as the Veteran's claim for entitlement to TDIU was inferred as part and parcel of his claim for an increased rating, the appellate period of the TDIU claim runs concurrent with that of the increased rating claim. See, e.g., Harper v. Wilkie, 30 Vet. App. 356 (2018). As such, the appropriate date of claim for entitlement to TDIU is June 4, 2007, the date of the Veteran's claim for service connection for PTSD, from which the increased rating claim for PTSD stemmed. In weighing the lay and medical evidence of record, and upon resolution of all reasonable doubt in the Veteran's favor, the Board finds that as of June 4, 2007, the Veteran was unemployable due to his service-connected disabilities, and that a grant of TDIU on an extraschedular basis is warranted as of that date. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See, Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017). C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Brian P. Keeley 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.