Citation Nr: 21063508 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 11-34 274 DATE: October 14, 2021 ORDER Beginning on February 18, 2009, a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDING OF FACT Beginning on February 18, 2009, the evidence is in equipoise with regard to showing that the Veteran's service-connected posttraumatic stress disorder (PTSD) rendered him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW Beginning on February 18, 2009, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1968 to September 1972. He served honorably in the United States Navy. The Board thanks the Veteran for his service to our country. By way of history, service connection for the Veteran's PTSD was granted in May 2009 and was evaluated as 50 percent disabling. The Veteran filed a notice of disagreement (NOD) in July 2009, and subsequently perfected this appeal to the Board, contending that he should have a higher initial rating. During the pendency of this appeal, an August 2017 rating decision granted TDIU beginning March 10, 2017. In a September 2017 rating decision, the Veteran's PTSD rating was increased to 70 percent disabling, also effective March 10, 2017. Later, in a September 2018 Board decision, an earlier effective date for service connection for the Veteran's PTSD was granted; as a result, the appeal period for this claim dates back to May 1997. This matter was last before the Board in April 2020, when, in pertinent part, an initial disability rating of 70 percent for PTSD prior to March 10, 2017, was granted; however, entitlement to TDIU prior to March 10, 2017, was not addressed in the Board's April 2020 decision. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In May 2021, the Court issued an Order that vacated that part of the April 2020 Board decision that denied an increased rating in excess of 70 percent prior to March 10, 2017, but only to the extent that it failed to adjudicate the issue of entitlement to TDIU. It was then remanded for readjudication consistent with instructions outlined in a May 2021 Joint Motion for Remand (JMR) by the parties. The Court found the Veteran abandoned his appeal as to the Board's April 2020 denial of his claim for an initial disability rating in excess of 70 percent for PTSD from March 10, 2017, onwards; accordingly, that claim is not for consideration here. See Pederson v. McDonald, 27 Vet. App. 276 (2015). Also, the portion of the Board's April 2020 decision granting an initial disability rating of 70 percent for PTSD for the period prior to March 10, 2017 is a favorable finding and will not be disturbed. See Medrano v. Nicholson, 21 Vet. App. 165 (2007). Since the Court remanded this matter, it has been reassigned to the undersigned Veteran's Law Judge. Beginning on February 18, 2009, entitlement to a TDIU is granted. A claim for TDIU, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). This form of TDIU claim is known as a Rice TDIU because it was raised during the administrative appeal of the Veteran's claim for an increased rating for his service-connected headache disorder and it is, therefore, a component of that claim for benefits related to that disability. See Rice v. Shinseki, 22 Vet. App. 447, 454-455 (2009). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is unable, by reason of his service-connected disabilities, to secure or follow a substantially gainful occupation consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that he has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16(a). Veterans unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). An extra-schedular TDIU may be assigned in exceptional cases to a Veteran who is found to be unemployable because of service-connected disabilities, but whose disabilities do not meet the percentage standards set forth in 38 C.F.R. § 4.16(a). See 38 C.F.R. § 4.16(b). The Board is required to obtain the decision by the Director, Compensation Service, (Director) before awarding extraschedular TDIU benefits in the first instance; however, the Board is not bound by the Director's decision or otherwise limited in its scope of review of that determination. Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or the impairment caused by any non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. In Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court defined the term "unable to secure and follow a substantially gainful occupation" in §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: the Veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. In determining whether the Veteran is entitled to a TDIU, neither his nonservice-connected disabilities nor his age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Court has held that the central inquiry in determining whether a Veteran is entitled to a TDIU is whether service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Notably, in Foust v. West, 13 Vet. App. 342 (2000), the Court held that where the claimant was actually employed at a substantially gainful occupation, such employment constituted, as a matter of law, actual employability for the purposes of 38 C.F.R. § 3.343(c)(1). TDIU will not be warranted for a period in which the Veteran actually participated in substantially gainful employment. Here, the parties to the May 2021 JMR agreed that remand was warranted because the Board erred when it did not adjudicate entitlement to TDIU prior to March 10, 2017, as part of the Veteran's increased rating claim for PTSD. The appeal period for this claim dates back to May 1997, since which time the Veteran has had a 70 percent rating for his PTSD interspersed with two temporary 100 percent ratings pursuant to 38 C.F.R. § 4.29. As the Veteran was already in receipt of a 100 percent rating for the period from October 6, 2009 to November 30, 2009, a TDIU for that period would be moot. Specifically, the Veteran filed an application for TDIU that VA received in December 2011. In the TDIU application (VA Form 21-8940), the Veteran claimed that February 18, 2009 was the date he became too disabled to work due to service-connected disabilities, including his PTSD. The Veteran indicated that he was employed by VA as a therapist and counselor in the field of chemical dependency from 1994 to February 2009. Consistently, a VA PTSD examination report from October 1997 shows that the Veteran was working as an alcohol rehabilitation counselor at VA at that time. In a letter dated February 18, 2009, the Office of Personnel Management determined that the Veteran was disabled for his position as an addiction therapist due to PTSD and as a result his application for disability retirement was approved. A June 2009 medical opinion from a VA psychologist states that the Veteran experienced severe PTSD symptoms including intrusive thoughts and memories, frequent nightmares, poor sleep, and emotional numbing. He had marital and other relationship problems as a result of his PTSD and his symptoms impaired his daily functioning resulting in medical retirement. VA treatment records in this claim are voluminous and document the consistency of treatment the Veteran has engaged in to treat his PTSD, as well as its severity and the corresponding significant negative impact upon his occupational functioning. For example, VA treatment records dated February 11, 2009, just before he ceased working, show that the Veteran had completed a 90-day inpatient PTSD treatment program but he continued to manifest significant impairment in occupational functioning and relationships, which a VA psychologist opined was in keeping with that of veterans who have been exposed to combat trauma and been diagnosed with PTSD. The Veteran was regularly participating in a PTSD treatment group. In a letter dated March 2, 2017, a VA clinician stated that since 2011 the Veteran had exhibited severe symptoms of PTSD, been admitted to inpatient psychiatric care, and lived in a shelter due to homelessness. The clinician also noted that suicidal ideation remained present and the Veteran's severe PTSD symptoms included hyper avoidance, regular nightmares, and hyper sensitivity to loud noises that impaired his ability to maintain employment due to his inability to properly function in an environment with any form of stress or constant interaction. Although written in March 2017, the clinician's letter provided a cumulative view of the Veteran's PTSD since the clinician began treating him in March 2012. During the intervening five years, the Veteran met with the clinician twice per month for group therapy followed by individual therapy. Although in July 2015 a different VA clinician opined that the Veteran was capable of working in isolation or with minimal contact with others, the clinician also stated that he would have difficulty relating with others such that it would lead to problems interacting with individuals on-the-job, be it colleagues, the public, or supervisors. Anxiety, hypervigilance, and panic symptoms were also noted. The Board finds that under the circumstances of this Veteran's particular case, such demonstrated symptomatology is inconsistent with the ability to secure or follow a substantially gainful occupation, to include as an addiction counselor in which role the evidence shows the Veteran served for approximately 15 years. Accordingly, resolving all reasonable doubt in favor of the Veteran, TDIU is granted effective February 18, 2009. On the other hand, prior to February 18, 2009, the evidence favors a finding that the Veteran was engaged in substantially gainful employment as a therapist at VA consistent with the information he provided in his own application for TDIU received in December 2011. Where a claimant was actually employed at a substantially gainful occupation, such employment constitutes, as a matter of law, actual employability for the purposes of 38 C.F.R. § 3.343(c)(1). Foust v. West, 13 Vet. App. 342 (2000). Therefore, prior to February 18, 2009, TDIU is not warranted. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Fales, 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.