Citation Nr: 21062083 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 17-50 383 DATE: October 6, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis prior to September 27, 2017, is granted. FINDING OF FACT Prior to September 27, 2017, the Veteran was not able to obtain or retain substantially gainful employment due to his service-connected posttraumatic stress disorder (PTSD). CONCLUSION OF LAW The criteria for entitlement to a TDIU rating on an extraschedular basis prior to September 27, 2017, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1965 to May 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran a TDIU rating. A Board hearing was held in January 2020. A transcript is of record. Relevantly, a February 2020 Board decision granted a schedular TDIU rating from September 27, 2017, and remanded entitlement to a TDIU rating on an extraschedular basis prior to September 27, 2017, to the Agency of Original Jurisdiction (AOJ). Specifically, the Board referred the Veteran's claim to the Director of the Compensation Service for extraschedular consideration. The claim is back before the Board for further appellate proceedings. The Board finds there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 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, this 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 sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). "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(a). In determining whether a veteran can secure and follow a substantially gainful occupation, the 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. Prior to September 27, 2017, the Veteran did not meet the schedular criteria for TDIU. However, as stated above, the Board referred the claim to the Director for entitlement to extraschedular TDIU in February 2020. See 38 C.F.R. § 4.16(b). The Director denied entitlement to an extraschedular TDIU rating prior to September 27, 2017. See October 2020 Administrative Decision. As of July 6, 2011, the Veteran was service connected for the following disabilities: PTSD and tinnitus, left ear hearing loss, and residuals of a left foot fracture. The Veteran has alleged that he cannot work due to his PTSD since March 2010. See August 2012 VA Form 21-8940. Thus, the narrow issue before the Board is whether the Veteran has been unable to secure or follow a substantially gainful occupation because of his service-connected disabilities prior to September 27, 2017. The Veteran has successfully passed a General Education Development test. See Board Hearing Tr. at 21. He has also completed some college level courses, to include courses related to manufacturing. Id. Importantly, he has specialized training as a tool specialist related to the manufacturing industry. Id. at 18. He has worked in over 25 different positions since separation from active service. See Board hearing Tr. at 17, September 2017 VA Form 9. A review of his work history shows that the Veteran's occupational abilities were focused on physically demanding or sales-related positions. See SSA records. Within the appellate period, a VA examiner noted that the Veteran's PTSD causes significant memory deficits. See October 2011 VA examination report. The Veteran states that his memory deficits forced him to retire from gainful employment. Id. In August 2011, a VA neuropsychologist provided an evaluation after a referral to determine the Veteran's cognitive strengths and weaknesses. See September 2017 VA treatment records. The doctor opined: "[g]iven the noted deficits in learning/retrieval and psychomotor processing speed and inefficient auditory divided attention, it is likely [the Veteran] would be unsuccessful in attempts to return to full time competitive employment, particularly in a field consistent with his prior experience and training." Id. 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 finds the Veteran, his treatment providers, and the VA medical examiner probative as to the Veteran's functional limitations attributable to his service-connected PTSD. Moreover, a Social Security Administration Administrative Law Judge (ALJ) concluded that the Veteran is unable to perform any past relevant work. See SSA records. The ALJ noted the VA neuropsychologist's opinion in finding that the Veteran was functionally limited. Id. During a hearing before the ALJ, a vocational expert testified as to the Veteran's occupational ability. Id. Based on that testimony, the ALJ found that the Veteran's mental limitations impede his ability to perform any past relevant work. Id. The Board finds the ALJ's findings of fact and conclusions of law persuasive. (Continued on the next page) Therefore, the Board finds that the Veteran's service-connected PTSD prevented him from obtaining and maintaining substantially gainful employment prior to September 27, 2017. Accordingly, the criteria for TDIU on an extraschedular basis have been met prior to September 27, 2017, and the claim is granted. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 9, 55-57 (1990). DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Strickland 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.