Citation Nr: 21003642 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 10-09 117 DATE: January 22, 2021 ORDER A total disability rating based on individual unemployability (TDIU), for the period prior to October 5, 2011, is granted. FINDING OF FACT Throughout the period on appeal, the Veteran’s service-connected disabilities prevented him from obtaining and retaining substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU, for the period prior to October 5, 2011, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from September 1969 to April 1971. This matter comes before the Board of Veterans’ Appeals (Board) from December 2008 and March 2013 rating decisions. In December 2008, the agency of original jurisdiction (AOJ) granted service connection for post-traumatic stress disorder (PTSD) with an initial rating of 10 percent, effective September 23, 2005. In March 2013, the AOJ increased the rating for PTSD from 10 percent to 30 percent, effective February 7, 2011; and to 70 percent, effective October 5, 2011. In the March 2013 rating decision, the AOJ also granted a TDIU effective as of August 1, 2012, based on a determination of unemployability due to PTSD, as well as meeting the percentage threshold criteria for a schedular TDIU on that date. The Veteran also met the schedular percentage threshold for a TDIU, based on a 70 percent rating for PTSD, as of October 5, 2011. It appears that the AOJ assigned August 1, 2012, as the effective date because this was the date on which the rating for prostate cancer and residuals was decreased from 100 to 40 percent. Therefore, as noted in previous Board decisions dated December 2014, February 2016, April 2017, and September 2018, the Board will focus on the period prior to October 5, 2011. In a December 2014 decision, the Board granted a 50 percent rating for PTSD prior to October 5, 2011, and denied a rating in excess of 70 percent from that date forward. The Board, in relevant part, remanded the issue of TDIU prior to October 5, 2011. The Veteran appealed the December 2014 decision to the United States Court of Appeals for Veterans Claims (Court) regarding the ratings assigned for PTSD. In an October 2015 Order, the Court granted a joint motion for remand, vacating the decision and remanding the issue, to the extent that it denied higher ratings. In a February 2016 decision, the Board once again denied an initial schedular rating in excess of 50 percent for PTSD for the period prior to October 5, 2011, and a rating in excess of 70 percent from that date. In and April 2017 decision, the Board denied a TDIU for the period prior to October 5, 2011. The Veteran again appealed the Board’s decision to the Court. In a February 2018 Order, the Court granted a joint motion for partial remand, vacating the Board decision and remanding the issue, to the extent that it denied a TDIU prior to October 5, 2011. In a September 2018 decision, the Board remanded the issue of a TDIU for the period prior to October 5, 2011, to determine what effect, if any, PTSD, flatfeet with bunions, and lacerating scars to the left eyebrow and right corner of the mouth had on the Veteran’s employability prior to October 5, 2011. In a June 2020 decision, the Board determined that the July 2019 VA examination, obtained pursuant to September 2018 Board remand, demonstrates sufficient evidence of unemployability for the period prior to October 5, 2011. Thus, the Board referred the matter to the Director of Compensation for consideration of an extraschedular TDIU for the period prior to October 5, 2011. The claim has since been returned to the Board for review. For the reasons indicated in the discussion below, the opinion provided by Director of Compensation was adequate, and the AOJ therefore complied with the Board’s remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). TDIU A TDIU rating may be assigned where the schedular rating is less than total, when it is found that the disabled Veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there are sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. For purposes of entitlement to a TDIU, disabilities resulting from a common etiology are considered as one disability. 38 C.F.R. § 4.16(a). When the percentage requirements are not met, a TDIU on an extraschedular basis may nonetheless be granted in exceptional cases, pursuant to specially prescribed procedures, when a Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). The Board is prohibited from assigning a TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) in the first instance without ensuring that the claim is first referred to VA’s Director of Compensation (Director) for consideration of an extraschedular TDIU. Bowling v. Principi, 15 Vet. App. 1 (2001); 38 C.F.R. § 4.16(b). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but age and impairment caused by nonservice-connected disabilities are not factors for consideration. 38 C.F.R. §§ 3.341, 4.16, 4.19. Also, it is necessary that the record reflect some factor that places the Veteran in a different category than other Veterans with equal ratings of disability. The sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. The ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). For the following reasons, the Board concludes that, although the Veteran’s combined rating for his service-connected disabilities throughout the period on appeal do not meet the schedular requirements for a TDIU, the evidence demonstrates that the Veteran was unable to obtain and retain substantially gainful employment due to his service-connected disabilities. As noted above, the relevant service-connected disabilities for consideration of extraschedular assignment of TDIU prior to October 5, 2011, are limited to PTSD, flatfeet with bunions, and lacerating scars to the left eyebrow and right corner of the mouth. The Veteran’s service-connected disability of adenocarcinoma of the prostate cannot be considered for the time period prior to October 5, 2011, because the Veteran had a schedular rating of 100 percent for the period from November 4, 2009 to July 31, 2012, and he was receiving special monthly compensation under 38 U.S.C. § 1114(s) and 38 C.F.R. § 3.350(i) for the period from November 4, 2009 to October 4, 2011. See Bradley v. Peake, 22 Vet. App. 280 (2008); 38 C.F.R. § 4.16(a). Therefore, throughout the relevant period on appeal, the Veteran’s combined disability rating was 60 percent, and his service-connected disabilities included PTSD rated at 50 percent, flatfeet with bunions rated at 10 percent, and lacerating scars to the left eyebrow and right corner of the mouth rated at 10 percent. Accordingly, throughout the period on appeal the Veteran did not meet the minimum percentage requirements set forth in 38 C.F.R. § 4.16(a). As discussed below, the Veteran’s extraschedular TDIU claim has been referred to and considered by the Director, and the claim is now back before the Board. First, the evidence of record contains multiple credible and consistent statements submitted by the Veteran in February 2006, March 2009, December 2012, and February 2017 regarding his claim of TDIU, including for the period prior to October 5, 2011. In particular, the statement submitted in February 2017 provides a detailed account of the Veteran’s assertions. The Veteran stated that following service in the Republic of Vietnam, during which he was involved in combat and also experienced additional stressors, he began to experience PTSD symptoms upon returning home. The Veteran stated that following service he maintained employment to afford drugs and alcohol to numb his PTSD symptoms. Further, the Veteran stated that he sought employment as a firefighter because he was addicted to the adrenaline rush that he experienced during service in the Republic of Vietnam. Next, the Veteran stated that when the fire department began conducting drug tests, he became sober in an effort to maintain his employment and to support his wife and children. Subsequently, in 1997 the Veteran stated that his duties as a firefighter expanded to include responding to medical emergencies in the capacity of a first responder as well as responding to fires. The Veteran explained that responding to suicides, gun shots, and heart attacks began to trigger flashbacks of combat. He stated that his PTSD symptoms began to worsen, and he hesitated in performing urgent duties as a first responder. The Veteran stated that his PTSD symptoms continued to worsen severely, ultimately leading to a psychiatric hospitalization. In 2001 following the psychiatric hospitalization, the Veteran stated that he was assigned training duties rather than fieldwork; however, his anxiety, depression, headaches, and nausea due to PTSD were so severe that he could no longer continue employment in any capacity. The Veteran stated that at significant financial loss he chose to retire four years early due to his PTSD symptoms. Next, the Veteran stated that following retirement in 2002 until achieving progress in psychiatric treatment in 2011, he was either homeless or lived in motels, suffered from constant substance abuse, and lost all contact with his wife and children. The Veteran stated that in 2005 he began psychiatric treatment, entered a residential treatment facility, and struggled to maintain consistent treatment and sobriety. The Veteran stated that although some of his treatment has included volunteer work, he has been unable to attempt gainful employment due to the continued severity of his PTSD symptoms. As noted above, following the September 2018 remand, a VA examination regarding a TDIU prior to October 5, 2011, was obtained in July 2019. The examiner opined that it is at least as likely as not that the symptoms related to the Veteran’s PTSD prevented him from obtaining and retaining substantially gainful employment. In the rationale, the examiner noted that the Veteran asserts that his symptoms related to service-connected PTSD became exacerbated by his many years working as a firefighter, ultimately requiring him to retire early. The examiner conducted a review of the medical evidence of record and concluded that the treatment records support the Veteran’s claim that the reason he retired and has continued not to work as a firefighter is due to his PTSD symptoms becoming too exacerbated by the nature of that work. Next, regarding whether the Veteran’s PTSD symptoms rendered him unable to obtain and retain employment in another line of work and specifically considering types of employment for which he would otherwise be qualified based on his level of education, experience and special training, the examiner stated that the Veteran’s long work history as a firefighter suggests that his education, special training, and prior work experience are mostly related to firefighting. Further, the examiner stated that she disagreed with a July 2016 VA examination opinion stating that the Veteran would likely have been able to function fairly well in a slower-paced and less stressful work environment such as in an office job or a desk job. Specifically, the examiner stated that some of the most common occupational impairments associated with PTSD are attention and concentration difficulties and that an office job or desk job places a much higher demand on focused attention and concentration, as compared to a more physical job with occupational demands that more naturally compel attention. The examiner determined that the Veteran’s long work experience as a firefighter was closely aligned with activities he experienced in the Republic of Vietnam, including that it was physically demanding, caused high stress, and placed him in dangerous situations, yet it was precisely those similarities that contributed to a worsening of his PTSD symptoms over time. Ultimately, the examiner concluded that the jobs for which the Veteran’s work experience, special training, and education qualify him are likely of a similar nature, and therefore could reasonably be expected to exacerbate his PTSD symptoms. Next, in October 2020, the Director of Compensation provided an advisory opinion regarding the Veteran’s claim for extraschedular consideration for a TDIU for the period prior to October 5, 2011. The Director noted that the evidence of record indicates that the Veteran last worked full-time as a firefighter in October 2002 and that he did not attempt to obtain sedentary work after taking early retirement as a firefighter. The Director noted that the Veteran’s statements were considered. The Director determined that the evidence shows that the Veteran’s PTSD would preclude work as a firefighter as the occupation closely resembles the events during service that could trigger PTSD symptoms; however, there is no evidence of the Veteran’s inability to perform sedentary employment due to symptoms of PTSD, bilateral feet, or laceration scars prior to October 5, 2011. The Board finds the Veteran’s credible and consistent statements and the opinion of the July 2019 VA examiner to be of greater probative value than the October 2020 advisory opinion provided by the Director of Compensation. First, the Director specifically acknowledged that throughout the period on appeal the Veteran’s symptoms due to PTSD prevented him from obtaining and retaining substantially gainful employment as a firefighter. Second, the Director found that the evidence did not indicate that the Veteran would have been precluded from obtaining and retaining substantially gainful sedentary employment by his service-connected disabilities; however, the opinion of the July 2019 VA examiner and the Veteran’s statements do not support the Director’s conclusion. The July 2019 VA examiner specifically stated that the Veteran’s attention and concentration difficulties due to PTSD would severely impair his ability to perform sedentary employment in an office job or desk job. Moreover, the July 2019 VA examiner provided an adequate and thorough explanation regarding why there are no other jobs, including sedentary jobs, for which the Veteran’s work experience, special training, and education qualify him. Lastly, the Veteran’s detailed statements explain how his duties as a firefighter, which were expanded to include those of a first responder in urgent medical situations, caused a severe exacerbation of PTSD symptoms that ultimately rendered him completely unable to work in any capacity and required his complete attention to focus on participating in psychiatric treatment and maintaining sobriety. Therefore, the Board finds the Veteran’s credible and consistent statements and the well-reasoned conclusions of the July 2019 VA examiner to be of greater probative value than the conclusory findings of the October 2020 advisory opinion provided by the Director of Compensation. Accordingly, considering the totality of the evidence, the Board resolves all reasonable doubt in favor of the Veteran and finds that the requirements for establishing TDIU for the period prior to October 5, 2011, have been met. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the appeal is granted. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Page-Nelson, 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.