Citation Nr: 21005084 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 02-18 831 DATE: January 28, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to the service-connected disabilities on an extraschedular basis and on the basis of substitution is granted from March 9, 2001, to November 7, 2002. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran was unable to secure and maintain substantially gainful employment as a result of his service-connected posttraumatic stress disorder (PTSD), limitation of supination of the right elbow, and residuals of a right elbow injury, post-operative, from March 9, 2001, to November 7, 2002. CONCLUSION OF LAW The criteria for entitlement to a TDIU on an extraschedular basis and on the basis of substitution have been met from March 9, 2001, to November 7, 2002. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.1, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty for training from August 1960 to February 1961 and on active duty from October 1961 to October 1963 with additional service in the Oklahoma National Guard from October 1963 to September 1966. This issue is on appeal from a July 2003 rating decision. In October 2006, the Veteran testified before the undersigned Veterans Law Judge at a hearing. The Veteran died in May 2015, and the Appellant is the Veteran’s surviving spouse. The Appellant was substituted as the claimant in this appeal in July 2015. In December 2010 and November 2015, the Board of Veterans’ Appeals (Board) denied this claim. The Veteran and thereafter the Appellant appealed these denials to the U.S. Court of Appeals for Veterans Claims (Court). In August 2011 and September 2016, the Court vacated the Board’s denials and remanded the claim for compliance with the instructions in Joint Motions for Remand (JMRs). This appeal was most recently remanded by the Board to the Agency of Original Jurisdiction in February 2018. Upon remand, in May 2018, the Appellant’s prior attorney revoked representation and informed both the Appellant and VA at that time. The Appellant has not appointed another representative and is currently pro se. 1. Entitlement to a TDIU on an extraschedular basis and on a substitution basis from March 9, 2001, to November 7, 2002. The September 2016 Court JMR and the November 2017 rating decision determined that a TDIU claim was first raised by the record on March 9, 2001, in the context of the Veteran’s increased rating claims. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran is currently in receipt of a TDIU, effective November 8, 2002. Since March 9, 2001, the Veteran and the Appellant have argued that the Veteran’s service-connected PTSD and right elbow disabilities prevented him from obtaining substantially gainful employment. See October 2006 VA 21-8940 Form, Veteran’s Application for Increased Compensation Based on Unemployability; October 2006 Board hearing testimony. VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from securing and following "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). A TDIU may be assigned where the schedular rating is less than total and it is found that a veteran is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If the veteran does not meet the required percentage standards set forth in 38 C.F.R. § 4.16 (a), he or she still may receive a TDIU on an extraschedular basis if it is determined that he or she is unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disabilities. 38 C.F.R. § 4.16(b). In cases where extraschedular consideration is warranted, referral to the Director of Compensation Service is necessary prior to a determination on eligibility. In determining unemployability for VA purposes, consideration may be given to a veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); see Faust v. West, 13 Vet. App. 342 (2000). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough, as a high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). Medical evaluations are probative to understanding the level of functional impairment; however, the ultimate determination of unemployability is a legal question, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Recently, in Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court defined the term "unable to secure and follow a substantially gainful occupation" in 38 C.F.R. § 4.16(b) to include 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: a veteran's history, education, skill, and training; whether a veteran has the physical ability to perform the type of activities required by the occupation at issue; and, whether a veteran has the mental ability to perform the activities required by the occupation at issue. When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. From March 9, 2001, to November 7, 2002, the Veteran was service-connected for the following disabilities: PTSD at a 30 percent rating; limitation of supination of the right elbow at a 10 percent rating; and, residuals of a right elbow injury, post-operative, at a 20 percent rating. As such, the Veteran did not meet the schedular criteria for TDIU at any point during the appeal period. 38 C.F.R. § 4.16(a). Nevertheless, the Veteran contended that he was entitled to a TDIU for his service-connected disabilities prior to November 8, 2002. Accordingly, the Board remanded the Veteran's case for administrative review for extraschedular consideration by the Director of Compensation Service under the provisions of 38 C.F.R. § 4.16(b). In October 2020, the Director of Compensation Service provided the requisite opinion and this opinion is associated with the claims file. After careful review of the evidence and resolving any reasonable doubt in the Veteran's favor, the Board finds that entitlement to a TDIU is warranted on an extraschedular basis and on a substitution basis from March 9, 2001, to November 7, 2002. In the present case, the Veteran reported education through his second year of college, without any further education or training. See October 2006 VA Form 21-8940. From 1993 to 1996, the Veteran worked full-time as a Guard/Counselor for the State Department of Corrections. Id. He stopped working in the Fall of 1996. Id. The Social Security Administration (SSA) found that the Veteran was disabled on November 1, 1999. In a March 9, 2001, statement, the Veteran reported that he could not do carpentry work or teach tennis post-service because of his injured right arm. His arm would give out. He described losing a machine shop job because he could not keep up with the work because of his service-connected right arm. He indicated that he was hurt on another job as a tire builder because he could not control the spear with his right arm and the spear bar “busted” between his eyes. He stated that the stress of working in the juvenile prison was “like Vietnam,” so he also had to quit that job. At his October 2006 Board hearing, the Veteran described witnessing violent outbursts from the inmates as a prison guard. See Board Hearing transcript, page 40. In a June 2017 affidavit, the Appellant stated that the Veteran did not file any federal tax returns from 2001 to 2009, as there was no income coming in during those years other than disability compensation from the U.S. Department of Veterans Affairs and SSA. The Appellant indicated that during those years, the Veteran would keep a pen of hogs as pets and as a hobby, but they never made any profit from the animals. The Veteran's medical records also corroborate that he had not worked for the entire appeal period and multiple providers confirmed work-related inabilities with his service-connected disabilities. In January 2017, the Veteran submitted a January 2014 private vocational assessment from E.C., a vocational consultant. Following a review of the Veteran’s claims file and a telephone conversation with the Veteran and the Appellant, E.C. determined within a reasonable degree of vocational certainty that the Veteran’s service-connected conditions resulted in his inability to secure or follow a substantially gainful occupation since at least 1997. E.C. considered the Veteran’s service-connected bilateral hearing loss and tinnitus in forming the opinion, which the Board notes the Veteran was not service-connected for during the portion of the appeal currently before the Board (i.e., from March 9, 2001, to November 7, 2002). However, E.C. seemed to focus the opinion primarily on the service-connected PTSD and the service-connected right elbow disabilities. E.C. determined that the Veteran’s PTSD resulted in poor memory and concentration for the Veteran and affected his daily functioning which resulted in more stress, a more fragile mood, sleep deprivation, and isolation from others. E.C. found that the Veteran’s right elbow disabilities resulted in daily discomfort, including sharp stabbing pain, difficulty lifting or pulling with the right upper extremity, and awakening him at night as he was unable to lie on his right side due to the discomfort. E.C. concluded that the Veteran’s right elbow disabilities prevented him from doing anything other than light activity, and his PTSD prevented him from dealing with people. At the May 2001 VA joints examination, the Veteran reported that he last worked in 1996 as a prison guard. Stiffness, pain, and swelling of the right elbow were documented at the examination. The Veteran reported that he was right-hand dominant, and that he had difficulty eating with his right hand. The VA examiner did not provide an opinion regarding the functional impairment caused by the service-connected right elbow disabilities. At the July 2003 VA joints examination, the VA examiner found that the Veteran’s service-connected right elbow disabilities did not affect his occupation since he was unemployed. However, pain, swelling, and weakness of the right elbow were documented at the examination. In light of the foregoing, the Board finds that the evidence is at least in equipoise as to whether the Veteran was unable to maintain substantially gainful employment due to his service-connected disabilities prior to November 8, 2002. The Board acknowledges the negative determination made by the Director of Compensation Service in October 2020. The Director noted that at the February 2006 VA PTSD examination, the Veteran reported that he had not worked in seven to eight years since his last job as a prison guard. However, he told the VA examiner that he had thirty acres with two cattle that he cared for and maintained. At the March 2010 VA examination, the Veteran was noted to be employed full-time as a farmer and cattle raiser. The Director found that the Veteran reported on 2008 [sp] and 2010 VA examinations that he was a cattle rancher and farmer and had been doing this for at least the last five to ten years. The Veteran stated that he had not lost time; however, he had decreased concentration. The Director found that there was evidence that the Veteran continued working full-time as a farmer and cattle raiser after he ended employment as a correctional center guard/counselor. Thus, the Director determined that an extraschedular TDIU prior to November 8, 2002, was not warranted. The Board is not bound by an adverse determination by the Director regarding entitlement to a TDIU on an extraschedular basis. See Wages v. McDonald, 27 Vet. App. 233, 236 (2015). In this regard, the Board reviews the Director's determination de novo and it does not constitute evidence that must be weighed. Kuppamala v. McDonald, 27 Vet. App. 447 (2015). In reviewing the evidence cited by the Director, the Board notes that the Veteran reported at the March 2010 VA examination that he had been employed full-time for the past five years (i.e., since March 2005) as a farmer and cattle raiser. This statement has no bearing on whether the Veteran was employed during the appeal period currently before the Board (i.e., from March 9, 2001, to November 7, 2002). At the March 2010 VA examination, the Veteran did not state that he was employed full-time at any point during 2001 or 2002. In reviewing the February 2006 VA examination report, the Board notes that the Veteran stated he was not currently working. The Veteran only reported taking care of two cattle. Additionally, the Director did not reference the Veteran’s Board hearing testimony, in which he reported only working three to four hours on the farm and then quitting. See Board hearing transcript, page 44. The Board does not find that this classifies as full-time employment, and again, the scope of this examination is outside the appeal period (i.e., from March 9, 2001, to November 7, 2002). Accordingly, the Board assigns low probative value to the Director’s determination. Given the Veteran's and the Appellant’s consistent and credible statements, and the supporting medical evidence of record, the Board finds the evidence is at least in equipoise as to whether the Veteran was unable to maintain substantially gainful employment due to his service-connected disabilities prior to November 8, 2002. As such, the Board grants a TDIU on an extraschedular basis and on a substitution basis from March 9, 2001, to November 7, 2002. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Shauna M. Watkins, 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.