Citation Nr: 21003223 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 07-04 292 DATE: January 21, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis from July 1, 2005, is granted. FINDING OF FACT 1. The record evidence shows that service connection is in effect for posttraumatic stress disorder (PTSD), evaluated as 50 percent disabling effective May 24, 2007, and as 70 percent disabling effective December 17, 2010, shell fragment wound of the left leg with a fracture of the left tibia, evaluated as 10 percent disabling effective July 10, 1971, otitis media, evaluated as 10 percent disabling effective July 10, 1971, second degree burn scars of the bilateral lower extremities, evaluated as 10 percent disabling effective July 10, 1971, multiple shell fragment wounds of the bilateral upper extremities and of the bilateral lower extremities, evaluated as 10 percent disabling effective July 10, 1971, tinnitus, evaluated as 10 percent disabling effective December 12, 2003, peripheral vestibular disorder, evaluated as 10 percent disabling effective February 17, 2009, corneal scars, evaluated as 10 percent disabling effective July 10, 1971, and for bilateral hearing loss, evaluated as 10 percent disabling effective July 30, 2003; the Veteran’s combined disability evaluation for compensation is 30 percent from July 10, 1971, 50 percent effective December 12, 2003, 70 percent effective May 24, 2007, and 80 percent effective December 17, 2010. 2. The record evidence shows that the Veteran was self-employed as a barber between his separation from service in 1971 until approximately July 2005 when he was forced to quit working as a result of the occupational impact of his service-connected disabilities on his self-employment. 3. The record evidence shows that the Veteran’s service-connected disabilities, alone or in combination, preclude his employability from July 1, 2005. CONCLUSION OF LAW The criteria for entitlement to a TDIU on an extraschedular basis from July 1, 2005 have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.16 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from July 1969 to July 1971, including in combat in the Republic of Vietnam. This appeal has a long procedural history. The Board denied a claim of entitlement to an earlier effective date than December 17, 2010, for a TDIU in a July 2018 decision. The Veteran, through an attorney, and VA’s Office of General Counsel appealed the Board’s July 2018 decision to the United States Court of Appeals for Veterans Claims (Court) by filing a Joint Motion for Remand (Joint Motion). The Court granted the Joint Motion in March 2019, vacating and remanding the Board’s July 2018 decision. In December 2019, the Board granted TDIU effective May 24, 2007, and remanded the currently appealed claim to the Agency of Original Jurisdiction (AOJ) for additional development. A review of the claims file shows that there has been substantial compliance with the Board’s remand directives. The Board directed the AOJ to obtain an opinion from the Director, Compensation Service (Director), for a decision on the Veteran’s entitlement to a TDIU on an extraschedular basis prior to May 24, 2007. The Director’s decision was obtained in November 2020. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board’s remand instructions were substantially complied with), aff’d, Dyment v. Principi, 287 F.3d 1377 (2002). Having reviewed the record evidence, the Board finds that the issue on appeal should be characterized as stated above. 1. Entitlement to a TDIU on an extraschedular basis prior to May 24, 2007 The Board finds that the evidence supports granting the Veteran’s claim of entitlement to a TDIU on an extraschedular basis from July 1, 2005. Consistent with the Veteran’s lay assertions, the record evidence shows that the Veteran’s service-connected disabilities, alone or in combination, preclude his employability from July 1, 2005. The Board notes initially that service connection currently is in effect for PTSD, evaluated as 50 percent disabling effective May 24, 2007, and as 70 percent disabling effective December 17, 2010, shell fragment wound of the left leg with a fracture of the left tibia, evaluated as 10 percent disabling effective July 10, 1971, otitis media, evaluated as 10 percent disabling effective July 10, 1971, second degree burn scars of the bilateral lower extremities, evaluated as 10 percent disabling effective July 10, 1971, multiple shell fragment wounds of the bilateral upper extremities and of the bilateral lower extremities, evaluated as 10 percent disabling effective July 10, 1971, tinnitus, evaluated as 10 percent disabling effective December 12, 2003, peripheral vestibular disorder, evaluated as 10 percent disabling effective February 17, 2009, corneal scars, evaluated as 10 percent disabling effective July 10, 1971, and for bilateral hearing loss, evaluated as 10 percent disabling effective July 30, 2003; the Veteran’s combined disability evaluation for compensation is 30 percent from July 10, 1971, 50 percent effective December 12, 2003, 70 percent effective May 24, 2007, and 80 percent effective December 17, 2010. Thus, the Veteran does not meet the schedular criteria for a TDIU prior to May 24, 2007. See 38 U.S.C. § 4.16(a) (2019). The record evidence shows that the Veteran’s service-connected disabilities, alone or in combination, preclude his employability prior to May 24, 2007. It is undisputed that the Veteran worked as a barber between his separation from active service in July 1971 and when he was forced to retire in approximately 2005 due to the occupational impact of his service-connected disabilities on his employment. He reported on a VA Form 21-8940 (formal TDIU claim) in June 2008 that his service-connected disabilities affected his full-time employment in July 2005 when he last worked full-time. He also reported that he became too disabled to work in August 2006. In a June 2008 statement, the Veteran’s last employer stated that he had been employed as an independent contractor from April 2003 to September 2005 and as a “commission barber” from September 2005 to August 2006. The Veteran reported on a July 2013 VA Form 21-8940 (formal TDIU claim) that his service-connected PTSD rendered him totally unemployable. He stated that his disability affected his full-time employment in June 2005 when he last worked full-time. He became too disabled to work in September 2006. The Veteran’s voluminous post-service VA and private outpatient treatment records show that his service-connected disabilities interfered with his employment as a barber. These records show that his only post-service employment was as a barber and this was his only profession. On VA general medical examination in August 2008, the Veteran reported that he quit barbering in 2005 because of pain in his hip after replacement surgery and steroid shots which caused him excessive pain. He was unable to stand for long periods and to pursue his profession of barbering. He reported that he had given up being a barber in the previous 12 months and moved from his former home in Dallas, Texas, to live with his family in Port LaVaca, Texas. On VA PTSD examination in December 2010, the VA examiner concluded that the Veteran’s “occupational functioning is greatly impaired by his [PTSD]. His frequent periods of irritability, sadness, depression, uncontrolled crying, and feelings of hopelessness do not contribute to a reality of successful and permanent employment.” In May 2014, a private vocational expert concluded that the Veteran’s service-connected disabilities, alone or in combination, precluded his employability. This expert provided a lengthy opinion supporting her determination that the Veteran is entitled to a TDIU solely as a result of his service-connected disabilities, including prior to May 24, 2007. The rationale for her opinion was based on a review of the Veteran’s claims file, including his service treatment records and post-service VA treatment records, and a telephone interview with him. The Veteran reported to this vocational expert that he was no longer able to be self-employed as a barber (which is the only job he trained for and held since his service separation) as a result of the occupational impact of his service-connected PTSD. Following active service, the Veteran stated that he went to barber school, became a licensed barber, and worked as a self-employed barber for 32 years until approximately 2006 when he became unemployable. The vocational expert noted that the Veteran’s former job as a barber “required prolonged walking, standing, and/or lifting.” This expert also noted that the Veteran’s worsening service-connected PTSD symptomatology “prevent[] him from social interaction. These limitations associated with his PTSD prevent him from being successful in an interview or working in any industrial occupation and therefore limit his ability to work at substantially gainful employment.” This expert further noted that the Veteran’s worsening symptomatology attributable to his service-connected shell fragment wound of the left leg with a fracture of the left tibia imposed significant functional limitations on his employability because he had to walk using crutches and his left tibia was deformed. This expert concluded that the occupational impact of the Veteran’s service-connected PTSD and shell fragment wound of the left leg with a fracture of the left tibia, alone or in combination, precluded his employability since 2006. The Board notes that it previously held in July 2018 that the May 2014 private vocational expert’s opinion is entitled to little probative value. Both parties to the Joint Motion specifically argued successfully to the Court that the Board should be required to reconsider the probative value of this opinion in considering entitlement to a TDIU. The Board notes in this regard that it is bound by the Court’s Order granting the Joint Motion. Accordingly, the Board has reconsidered the probative value of this evidence and finds it persuasive on the issue of entitlement to a TDIU on an extraschedular basis prior to May 24, 2007. On VA ear conditions DBQ in August 2016, the VA examiner concluded that the Veteran’s service-connected peripheral vestibular disorder impacted his former job as a barber. “When he was a barber he would have to use a stool to sit on when he cut hair to avoid falling if an episode came on. He is no longer working.” In October 2019, another private vocational expert opined that the Veteran’s service-connected disabilities, alone or in combination, precluded his employability prior to December 2010. The rationale for this opinion was based on a review of the Veteran’s claims file, including his service treatment records and post-service VA treatment records and a telephone interview with him. The Veteran reported that his service-connected PTSD symptoms included difficulty sleeping, daytime fatigue, frequent anxiety and panic attacks, difficulty with attention and concentration, difficulty following instructions, and struggling with social interactions. He experienced daily pain and fatigue in the left leg as a result of his service-connected shell fragment wound of the left leg with a fracture of the left tibia. This expert concluded that the Veteran had been unable to secure or follow a substantially gainful occupation since at least November 2005 due to the occupational impact of his service-connected disabilities, alone or in combination. The Board notes that the Director concluded in November 2020 that the Veteran is not entitled to a TDIU on an extraschedular basis prior to May 24, 2007. The Board also notes that it is not bound by the Director’s decision. The Veteran essentially contends that his service-connected disabilities, alone or in combination, precluded his employability throughout the appeal period. It is undisputed that he does not meet the schedular criteria for a TDIU prior to May 24, 2007. Consistent with his lay assertions, the record evidence as a whole shows that his service-connected disabilities, alone or in combination, preclude him from securing or following a substantially gainful occupation prior to this date. Several private vocational experts concluded in May 2014 and in October 2019 that the occupational impact of the Veteran’s service-connected disabilities precluded his employability prior to this date. The Veteran’s voluminous post-service VA outpatient treatment records and examination reports also support finding that his service-connected disabilities, alone or in combination, precluded his employability prior to May 24, 2007. For example, the December 2010 VA PTSD examiner concluded that the Veteran’s service-connected PTSD, alone, precluded his employability. All of the opinions dated in December 2010, May 2014, and in October 2019 were fully supported. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (finding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). The Veteran consistently has reported in lay statements throughout the appeal period that he was forced to quit working as a barber (his occupation since service separation) in approximately July 2005 solely as a result of the occupational impact of his service-connected disabilities on his employability. The record evidence as a whole is consistent with his assertions regarding the occupational impact of his service-connected disabilities on his post-service employability. In summary, and after resolving any reasonable doubt in the Veteran’s favor, the Board finds that the criteria for a TDIU on an extraschedular basis from July 1, 2005, have been met. See also 38 C.F.R. § 3.102 (2019). R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael T. Osborne, 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.