Citation Nr: 21004020 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 15-32 133 DATE: January 25, 2021 ORDER Entitlement to referral for extraschedular consideration for total disability rating for compensation due to individual unemployability (TDIU) prior to June 16, 2010 is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran was unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities prior to June 16, 2010. CONCLUSION OF LAW The criteria for referral for an extraschedular TDIU were not met prior to June 16, 2010. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the U.S. Army from August 1968 to March 1970. The Veteran filed a claim for TDIU in July 2006. The Veteran was awarded TDIU in a May 2014 Board of Veterans’ Appeals (Board) decision, effective June 16, 2010. The Veteran appealed for an earlier effective date. The Veteran testified at a hearing before the undersigned Veterans Law Judge in August 2018 and a copy of the hearing transcript has been associated with the claims file. The Board denied the Veteran’s claim in an April 2019 decision. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In February 2020, the Veteran and the Secretary of VA (parties) filed a Joint Motion for Remand (JMR) with respect to the April 2019 Board decision to vacate and remand the claim back to the Board, which was granted by the Court. The JMR indicated that the April 2019 decision did not provide adequate reasons or bases for its denial by failing to include a discussion of the physical and mental acts required by employment, as contemplated by the Court in Ray v. Wilkie, 31 Vet. App. 58, 72 (2019). In July 2020, the Board remanded the matter in order to perform additional development relating to outstanding private treatment records. The regional office performed the directed development and additional records were associated with the claims file. There has been substantial compliance with the remand directives and the matter is again before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran reported that he had to stop working in June 2006 primarily due to increased PTSD symptoms, which included social isolation, irritability, concentration and memory deficits, flashbacks, nightmares, and sleep disturbances. The Veteran has alleged that his disabilities impacted his functioning the same at the time of the alleged onset of disability in June 2006 as it did at the time of his award of TDIU in June 2010. He stated that, as nothing changed during this period, he should be entitled to a TDIU rating retroactive to June 2006. The Veteran’s representative contends that the Veteran was denied referral to TDIU based on a 2008 examination that found that the Veteran did not meet the criteria for a 100 percent disability rating for PTSD, as opposed to the statutory criteria for TDIU. The representative also indicated that full consideration was not given to all of the Veteran’s service-connected disabilities in aggregate. 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 because of service-connected disabilities, provided that the Veteran meets the schedular requirements. Specifically, if there is only one such disability, the disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and enough additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). As a preliminary matter, the Veteran’s service-connected disabilities did not meet the percentage requirements for a schedular TDIU under 38 C.F.R. § 4.16(a) prior to June 16, 2010. Prior to that date, the Veteran was service-connected for PTSD at 50 percent; old laceration to the dorsum of the right third fingertip with occasional episodes of tendinitis at 10 percent; tinnitus at 10 percent; old laceration to the dorsum of the right fourth fingertip with occasional episodes of tendinitis at zero percent; and bilateral hearing loss at zero percent. This equated to combined rating of 60 percent. The Veteran also has ischemic heart disease with atrial fibrillation, for which he is not service connected, and, thus, which cannot be considered for purposes of the Veteran’s TDIU claim. When the percentage requirements are not met, entitlement to a TDIU rating may be considered on an extraschedular basis when the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. See Bowling v. Principi, 15 Vet. App. 1 (2001). However, it may determine whether the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities, and then refer the issue to the Director of the Compensation Service, for a determination in the first instance as to whether the Veteran is entitled to a TDIU rating on an extraschedular basis under 38 C.F.R. § 4.16(b). Accordingly, the Board will analyze whether the evidence of record demonstrates the need for a referral to the Director of the Compensation Service for extraschedular consideration prior to June 16, 2016. The U.S. Court of Appeals for Veterans Claims (Court) has noted that VA amended the portion of the rating schedule dealing with mental disorders to remove the outdated references to the DSM-IV and replaced them with references to Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). See Golden v. Shulkin, No. 16-1208, 29 Vet. App. 221 at 224 (2018) citing 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). The Court noted that VA subsequently adopted the final rule, without change, and clarified that the final rule applied to claims filed after August 4, 2014. Id. The Veteran's claim was received and originally certified for appeal before August 4, 2014, and, as a result, the DSM-IV must apply in consideration of the within claim. A Global Assessment of Functioning (GAF) score is a quantifiable assessment of overall functioning used by mental health clinicians that reflects an individual's "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); Richard v. Brown, 9 Vet. App. 266 (1996) (both citing the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition (DSM-IV), p. 32 (1994)). The Veteran's records include evaluations based on the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV), which includes GAF scores. The Board notes that the use of the GAF scale has been abandoned in the DSM-5 because of, among other reasons, "its conceptual lack of clarity" and "questionable psychometrics in routine practice." See Diagnostic and Statistical Manual for Mental Disorders, Fifth edition, p. 16 (2013). However, as noted above, the DSM-IV is applicable in this case and was in use during the period on appeal when relevant medical entries of record were made. The Court has held that the use of GAF scores to assign disability ratings in instances where the DSM-5 applies, is inappropriate. See Golden v. Shulkin, 29 Vet. App. 221 (2018). However, the Court acknowledged that the Secretary did not intend the provisions of this final rule to apply to claims that were pending before the Board (certified for appeal) on or before August 4, 2014. Id. As stated, the current claim was certified prior to August 2014, therefore, the GAF scores assigned remain relevant for consideration in this appeal. GAF scores ranging between 61 and 70 reflect some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships. See Diagnostic and Statistical Manual for Mental Disorders, Fourth edition, p. 46 (1994). Scores ranging from 51 to 60 reflect more moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). Id. at p. 47. Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). Id. A GAF score ranging from 31-40 reflects some impairment in reality testing or communication (e.g., speech is at times illogical, obscure or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up other children, is defiant at home, and is failing at school). Id. "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16. In determining whether a veteran can secure and follow a substantially gainful occupation, the United States Court of Appeals for Veterans Claims (Court) in Ray v. Wilkie directed the Board to consider the following factors: (1) the veteran's history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required by the occupation at issue; and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue. 31 Vet. App. 58, 73 (2019). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The responsibility for making the ultimate TDIU determination is placed on the adjudicator and not a medical examiner. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A medical examiner's role is limited to describing the effects of disability upon the person's ordinary activity. See Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran is competent to testify as to facts he personally observed or described; this includes recalling what he personally felt, saw, smelled, heard, or tasted. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against a finding that referral for extraschedular consideration is warranted prior to June 16, 2010. The reasons follow. Although the Veteran retired in July 2006, the contemporaneous evidence does not indicate that this occurred as a direct result of an exacerbation in the Veteran’s service-connected disabilities, including PTSD. Rather, treatment notes indicated that the Veteran suffered a mini-stroke, relating to his nonservice-connected ischemic heart disease, in December 2005 and was not physically cleared to return to work until June 2006. Thereafter, although the Veteran returned to work for one day, he reported that his employer barred him from returning to work and recommended that he retire, based on his age, years of service, and the stress associated with the Veteran’s job as a Yard Master on the railroad. Although the Veteran stated that he felt PTSD was a contributing factor as to why he took early retirement because he had been physically cleared to return to work, it does not appear that returning to his job was an option, and the record does not show that symptoms of PTSD factored into the railroad’s decision to bar the Veteran from returning to work. After retiring, the Veteran continued to receive mental health treatment through the VA, as he had for multiple years prior. Treatment notes from July 2006 indicate that psychotropic medications were discontinued at the time of the Veteran’s mini-stroke in 2005. The Veteran reported a continuation of some recurrent symptoms that had been reported in years prior, including that he was not experiencing happiness even in response to happy events and that his sleep was poor. He stated that he did not want to retire. Despite depressive symptoms, the Veteran had otherwise unremarkable findings on mental status examination with normal behavior, cooperative attitude, a logical and goal-directed thought process, relevant thought content, and adequate insight. He denied suicidal ideation and reported that he was staying active by growing a garden and trees. He was assessed a GAF score of 55. In August 2006, treatment notes indicate that the Veteran had experienced some memory problems associated with his 2005 mini-stroke, which had since improved. The Veteran was noted to experience some anxiety and insomnia relating to PTSD. The Veteran was noted to have no barriers to learning and that he was receptive with good understanding of the information and treatment that he was provided. The Veteran underwent a VA psychological examination in September 2006. The Veteran reported continued depressive symptoms with poor sleep and some suicidal ideation. He was described as cooperative, friendly, and relaxed and attentive. He was found to have intact attention, unremarkable thought process and content, intact judgment and insight, normal memory, good impulse control, and average intelligence. The Veteran reported that he was staying active with his church and had no problems performing activities of daily living. The examiner stated that the Veteran’s PTSD did not affect his ability to have a long career with the railroad and did not cause him to become unemployed, but that his present symptoms would cause moderate impairment in his ability to gain and maintain employment. The examiner did not indicate that the Veteran was unemployable or incapable of work. The Veteran stated that his physical condition was the reason he retired. He was assessed a GAF score of 55. In January 2007, the Veteran underwent a VA examination relating to his right fingertip disabilities. The Veteran reported stiffness and weakness in the right third and fourth fingers, with ongoing sensation changes and difficulty flexing the fingers. He reported flare-ups occurring with cold weather or lifting greater than ten pounds. The Veteran exhibited slightly decreased grasp with some reduced range of motion and moderate weakness. There was a moderate to occasionally severe decrease in sensation, but no muscle loss noted. No painful motion was observed and the functional impact was stated as weakness with repetitive use. No extremity edema was noted, and the Veteran was found to have good functioning in the remaining extremities. The examiner stated that the Veteran’s right finger disabilities were very likely to interfere with work where repetitive and strenuous use of the right hand is needed. A February 2007 depression screen was negative. In April 2007, the Veteran reported worsening flashbacks and depression with low interest, poor sleep, and negative thinking. He was found to have intact cognition with goal-directed thinking, no paranoia, hallucinations or suicidal ideations, and he was described as pleasant and cooperative. He was assessed a GAF score of 50. The Veteran reported a continuation of symptoms the following month. However, he was noted to be improved compared to the prior visit and was looking forward to an enjoyable retirement. He stated that he believed that chronic PTSD had impacted his prior work functioning. He was assessed a GAF score of 60 and recorded negative PTSD and depression screenings. In June 2007, the Veteran began participating in group PTSD therapy sessions. The following month, he reported doing fairly well and his insight about his condition was noted to be improving. He was described as pleasant and cooperative with normal findings on mental status examination. The Veteran continued with treatment until January 2008, and he reported that he found group counseling to be helpful. Examiners documented multiple GAF scores between 55 and 59. In January 2008, the Veteran denied feeling hopeless about the present and future and reported that he had continued his new hobby of tree farming. He reported some continued adjustment and phase of life problems, but indicated that newly reinstated psychotropic medication was helping to improve his mood. A June 2008 PTSD screening was negative and the Veteran was no longer seeking routine treatment or group therapy. In November 2008, the Veteran reported that he spends solitary time in his barn working, but that he also enjoys going into town, looking around, and grocery shopping. Mental status examination showed the Veteran was described as cooperative, friendly, relaxed, and attentive. The Veteran underwent another VA examination for PTSD in December 2008. He reported that he was becoming more reclusive as time went on and that he worries about harming others with his words. He also reported symptoms of irritation, anger, sleep difficulties, and feelings of worthlessness. A mental status examination was generally unremarkable and the Veteran was again assessed a GAF score of 55. The examiner stated that, although the Veteran experienced reduced reliability and productivity due to PTSD symptoms, the examiner did not believe the Veteran experienced total occupational and social impairment and that the Veteran’s PTSD does not cause deficiencies in judgment, thinking, family relations, work, mood, or school. Treatment notes from early 2009 indicate that the Veteran was discharged from the PTSD clinic, as he had not been active since January 2008. On medical examination in 2009, the Veteran was routinely found to be fully alert and oriented and to be pleasant and cooperative. He denied feelings of depression on multiple occasions and recorded negative depression screenings. In October 2009, the Veteran reported continued social isolation. He testified that he could lift things, but that he had difficulty getting along with others and continued to experience sleep difficulty. However, the treatment records generally indicated stable functioning without significant exacerbations of the Veteran’s service-connected disabilities through the end of the relevant period in June 2010 with no inpatient treatment. The weight of the combined evidence of record does not indicate that the Veteran was incapable of performing substantially gainful employment prior to June 16, 2010. Based on the findings of record relating to the Veteran’s service-connected disabilities, the Board acknowledges that the Veteran experiences some reduced function relating to his right finger disabilities with repeated use over time that could be accommodated by a restriction from repetitive and strenuous use of the right hand, but would not preclude the Veteran from substantially gainful employment. This is supported by the findings of the 2007 VA examiner. Furthermore, at a VA examination marking the end of the appeal period on June 16, 2010, the examiner stated that it was less likely than not that the Veteran’s right finger disabilities would result in an inability to perform gainful employment. This finding is also supported by the Veteran’s own reports of his own ability to maintain high levels of physical activity during the relevant period. For example, the Veteran reported that he took up tree farming as a hobby and that he was able to go hunting with his son. The record also shows that the Veteran is also able to garden, drive, go grocery shopping, and manage his activities of daily living independently. Despite the use of a hearing aid during the relevant period and the Veteran’s report that he had a harder time hearing with background noise, the record does not demonstrate recurrent complaints, treatment, or communicative deficits, relating to bilateral hearing loss or tinnitus prior to June 16, 2010. Treatment notes show that the Veteran prefers to learn by hearing information and that he had no barriers to learning or communication. Hearing symptoms have not interfered with the Veteran’s ability to converse with medical providers, go shopping, attend church, or manage his activities of daily living. The June 2010 examiner also stated that the Veteran’s hearing loss and tinnitus issues would not result in an inability to perform gainful employment. For all these reasons, the weight of the evidence demonstrates that the Veteran was capable of performing the physical requirements of substantially gainful employment. Regarding the Veteran’s education, training, skill, and work history, the VA Form 21-8940 submitted by the Veteran indicates that he attended college for four years and earned a degree in education. Furthermore, the Veteran has a 40-year work history with the railroad, retiring as a Yard Master in 2006. The Veteran has indicated that he did not wish to retire, but that his employer did not allow him to continue working upon his return from a mini-stroke suffered in 2005, for which the Veteran is not service connected. The Veteran’s long history of skilled work, which includes managerial duties, along with the Veteran’s college education, reflects a capacity for learning, training, and communicating effectively with others. These skills do not appear to have been fully compromised by the Veteran’s service-connected disabilities, as discussed below, and would have facilitated the transition into an occupation better-suited to the Veteran’s limitations. As to the Veteran’s ability to perform the mental requirements of substantially gainful employment, the Board acknowledges that the Veteran has reported experiencing recurrent symptoms of PTSD, including depressive episodes, flashbacks, and sleep difficulties. However, the weight of the evidence demonstrates a level of functioning that does not support a finding that the Veteran was precluded from substantially gainful employment prior to June 16, 2010. Although the increasing stress-levels of the Veteran’s past work was listed as a factor of his 2006 retirement, it appears that the Veteran would be capable of performing lower-stress work. This is supported by consistent findings on mental status examination that showed the Veteran was fully alert and oriented and had a logical and goal-oriented thought process, relevant thought content, adequate judgment and insight, and a normal memory. Treatment notes indicate that the Veteran had no barriers to learning or communication. Despite the inherently limited value of GAF scores, the GAF scores of record generally demonstrate a moderate level of symptomology. Despite reports of increased isolation, the Veteran has routinely been described as pleasant, cooperative, relaxed, attentive, and friendly with normal behavior. He reported good relationships with family members, attending church regularly, going grocery shopping, and successfully participating in group therapy sessions. These findings suggest that the Veteran was not precluded from substantially gainful employment as a result of his service-connected PTSD. Based on the above assessment of the Veteran’s physical and mental abilities with consideration of his education, training, skills, and work history, the Board finds that the Veteran was capable of work that would result in income at the level of substantially gainful employment. For example, there are jobs that can be performed from home, such as being a telemarketer. A telemarketer is usually provided with a script that describes the product or services and which job can be performed from home. This kind of jobs would be repetitive, have structure, would not necessarily involve new tasks or novel concepts, would allow the Veteran to take breaks as needed, and would not exceed the physical or mental limitations addressed above. Additionally, the Veteran appeared capable of performing certain cashier positions, or work as a library, movie, or museum attendant. This is evidence against a finding that the Veteran was precluded from all forms of substantially gainful employment prior to June 16, 2010. The Veteran is competent to address his observed symptoms; however, a determination regarding TDIU is to be made by the adjudicator. The Veteran has submitted statements indicating that he was fully disabled due to his service-connected disabilities, but this assertion is not supported by the contemporaneous evidence of record or the opinions of multiple VA examiners during the relevant period, as discussed above. The opinions of the examiners during the relevant period reflect moderate impairment due to service-connected disabilities, but not a level of severity commensurate with unemployability. These examiners are medical experts who were able to personally examine the Veteran and provided reports with objective findings that support their conclusions and which are consistent with the longitudinal evidence of record during the relevant period. Accordingly, the statements of the VA examiners are more probative than the statements of the Veteran regarding the issue of entitlement to a TDIU rating. The Board finds that the preponderance of the evidence is against a finding that the Veteran was precluded from all forms of substantially gainful employment prior to June 16, 2010, and, therefore, the claim is not entitled to referral for an extraschedular TDIU rating. The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, it is not applicable where, as here, there is not an approximate balance of positive and negative evidence. 38 U.S.C. § 5107(b); 38C.F.R. §3.102. Accordingly, referral for an extraschedular TDIU rating prior to June 16, 2010 is not warranted. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Wonderling, 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.