Citation Nr: 21065584 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 11-12 008A DATE: October 26, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), to include on an extraschedular basis, is granted. FINDING OF FACT The evidence shows that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1942 to August 1945. He died in July 2018 and the appellant is his surviving spouse, who has been accepted as the substitute claimant for the purpose of processing this appeal to its completion. In October 2009, the Veteran filed a claim for an increased rating for his PTSD. A claim for an increased rating includes a claim for a TDIU when it has been reasonably raised by the record or expressly raised by the Veteran. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this regard, in November 2013, the Veteran filed a formal application for a TDIU and stated that his unemployability was due to his PTSD and that he had become too disabled to work in 2007. In a formal application dated in April 2015, but received by VA in June 2015, the Veteran stated that his unemployability was due to all his service-connected disabilities and that he became too disabled to work in January 1985. The Veteran testified before a Veterans Law Judge (VLJ) during a videoconference hearing in November 2013. The Veterans Law Judge who held the hearing is no longer employed by the Board. Thus, in July 2021, the appellant was informed that the VLJ was not available to participate in the appeal and given the opportunity to have another hearing. However, in September 2021, the appellant's representative noted that she did not wish to appear for another hearing In a September 2019 decision, the Board denied an entitlement to a TDIU. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In March 2019, the Court granted a Joint Motion for Partial Remand (JMPR) that vacated the September 2019 Board decision as to such issue and the matter now returns for further appellate review. Entitlement to a TDIU. As stated in the Introduction, the Veteran's TDIU claim stems from his October 2009 claim. In relevant part, the Veteran's PTSD was evaluated as 10 percent from April 1962 to August 31, 2007, 30 percent from August 31, 2007 to May 28, 2010, 50 percent from May 28, 2010 to March 31, 2011, and as 70 percent disabling thereafter. He was also in receipt of compensation for tinnitus (evaluated as 10 -percent disabling effectively since September 6, 2013) and hearing loss disability (evaluated as noncompensable also effectively since September 6, 2013). His combined rating for the pertinent period on appeal was 50 percent disabled prior to March 31, 2011, and 70 percent disabled thereafter. Thus, he did not meet the schedular criteria for a TDIU prior to March 31, 2011. 38 C.F.R. § 4.16 (a). Under the applicable criteria, total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). Rating boards should submit to the Director of Compensation Service for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16 (a). See 38 C.F.R. § 4.16 (b). Here, as stated above, the Veteran had a combined rating of 70 percent since March 31, 2011; thus, he met the schedular criteria for a TDIU as of March 31, 2011. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when adjudicating a TDIU claim, VA must consider the individual Veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, 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). "Substantially gainful employment" is considered "work that involves doing significant productive physical or mental duties and is done for pay or profit" even if the work "is done on a part-time basis or if a claimant is paid less or is given less responsibility than when the same claimant worked before." In other words, a "substantially gainful occupation" is "one that provides annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the veteran actually works and without regard to the veteran's earned annual income" prior to when he was last employed. See Faust v. West, 13 Vet. App. 342, 356 (2000) (citing analogous Social Security Administration regulations). Marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16 (a). Marginal employment may also be held to exist, on a fact found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. Id. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In the November 2013 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, the Veteran indicated that he most recently worked as a driver from 2005 to 2007, but he became too disabled to work in 2007. In response to inquiries as to whether he left his last job/self-employment because of his disability and he did not receive/expect to receive disability retirement benefits or Worker's Compensation benefits. The Veteran indicated that he graduated from high school and he had additional education or training since becoming too disabled to work. However, he also noted that he had not tried to obtain employment since he became too disabled to work. The Veteran stated that his unemployability was due to his PTSD. In June 2015, the Veteran stated that his unemployability was due to all his service-connected disabilities and that he became too disabled to work in January 1985. As stated above, the Veteran's combined rating for the pertinent period on appeal was 50 percent disabled prior to March 31, 2011, and 70 percent disabled thereafter. In this regard, the Board notes that in an August 2017 VA Memorandum, the Director of VA Compensation and Pension Services denied entitlement to TDIU on an extraschedular basis. As such, the Board will address entitlement to a TDIU, to include on an extraschedular basis. A November 2007 VA examination report reflects that the Veteran reported that he retired in 1983. He reported nightmares and night sweat, flashbacks, irritability, anger problems, concentration problems, and depression. The examiner found that the Veteran's PTSD was "mild to moderate" and that the Veteran had secondary depression. A November 2009 VA examination report reflects that the Veteran's PTSD symptoms were "moderate" and had been exacerbated by health problems and surgeries in 2007 and 2008, and the death of his former spouse. A July 2010 VA examination report reflects that the Veteran reported that he had worked at a company for 20 years. He denied any disciplinary actions or missed time from work due to mental health difficulties. He reported that his depression had increased since an abdominal aortic aneurism repair in October 2007 and a subsequent incisional hernia. It was noted that the Veteran was able to manage his own money and able to drive. Physical work was limited due to his hernia and physical limitations. The examiner summarized the Veteran's PTSD symptoms as "moderate". A July 2013 VA examination report that the examiner found that the level of impairment would cause occupational and social impairment with reduced reliability and productivity. Additionally, at his November 2013 Board hearing, the Veteran testified that a job such as stocking shelves at a large store would be overwhelming for him if he was around a lot of people and there was "noise all around" him and "kids screaming". He indicated that he would get angry at some point because he is not used to being around a lot of people. A July 2014 VA examination report noted that the Veteran had a moderate level of impairment related to his PTSD. The examiner opined that the Veteran had interpersonal difficulty and stated that he enjoyed working with some degree of independence. His anxiety would most likely result in intermittent difficulty with attention and concentration, and in spite of the Veteran's PTSD symptoms, he has had a positive work history. The examiner found that the Veteran's PTSD would not preclude employment. An April 2015 Self Work Individual Unemployability Assessment by vocational consultant, C. B. states that the post-2006 records show that the Veteran's PTSD was "totally disabling," and C.B. opines that the years between 1963 and 2006 were likely of little difference. C.B. found that the Veteran was precluded from substantially gainful employment as of 1985. C.B. also stated that it was his understanding that a GAF (Global Assessment of Functioning) score of 50 to 53, which was assigned by G.M. during the July 2013 examination, is consistent with total unemployability. A March 2016 VA examination opinion reflects that the Veteran was helped by his work to distract from experiencing PTSD memories, that he would have moderate difficulty controlling his anger, and mild difficulty with his ability to seek and obtain employment due to depression. In a November 2017 private vocational employability assessment report, B.M. opined that it is at least as likely as not that the Veteran's PTSD has rendered him unable to secure and follow substantially gainful employment since 1985. Moreover, B.M. stated that the Veteran's disturbed sleep and subsequent daytime fatigue have precluded him from maintaining work. B.M. also opined that the Veteran's hearing loss and tinnitus would make it difficult to communicate effectively with others and cause increased difficulty with concentration. In a July 2021 private vocational opinion, F.F. considered the medical evidence from multiple service providers as they related to limitations of the Veteran's service-connected disabilities. F.F. concluded that it was at least as likely as not that the Veteran would have been unable to secure and follow substantially gainful employment, to include unskilled sedentary employment, since at least 2007 until his passing in July 2018. As rationale, F.F. explained that the Veteran was unable to satisfy the standards of adequate pace, productivity, reliability, and interpersonal workplace communication due to symptoms associated with service-connected PTSD with secondary depression and history anxiety reaction, since at least 2007 until his passing in July 2018. Specifically, as noted in the evidence of the record, the Veteran's suspiciousness, hypervigilance, and intrusive thoughts were distracting to an extent that would have rendered him off task and unproductive. Such distractibility and time off task would not have been tolerated by any employer at any skill or exertional level. Additionally, as noted in the medical evidence, the Veteran's PTSD caused a tendency to isolate with an intense aversion towards the general public including his wife, which further impeded his ability to appropriately interact with the general public, coworkers, and supervisors, and would not be tolerated by employers. Moreover, the Veteran had concentration and memory impairment, which impaired his ability to complete tasks efficiently and without error. Further, the Veteran's chronic sleep impairment and symptoms of depression exacerbated his already impaired concentration, and would have led to additional time off task, further impairing his ability to meet the basic requirements of competitive employment at any skill or exertional level. Moreover, F.F. concluded that the Veteran's service-connected hearing loss and tinnitus would have at least as likely as not further precluded his ability to secure and follow substantially gainful employment since at least September 2013 until his passing in July 2018. As rationale, F.F. explained that the Veteran's ability to communicate effectively with coworkers, supervisors, and the general public, in addition to his ability to sustain concentration for extended periods were compromised due to his hearing loss and tinnitus. Notably, the question of employability is ultimately a legal one, not a medical one. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). At the outset, the Board notes that there is positive and negative evidence of record. The record shows that the that the Veteran left his employment because of disability, that he did not receive disability retirement benefits, and that he has not tried to obtain employment. The Board is also cognizant of the July 2014 VA opinion noting that the Veteran's PTSD does not prevent him from obtaining gainful employment. See also VA Medical Opinion dated in February 2018. Nonetheless, the July 2021 private opinion concluded that the Veteran's service-connected disabilities resulted in his inability to secure and follow substantially gainful employment, to include unskilled sedentary employment. In this regard, F.F. explained that the Veteran's ability to communicate effectively with coworkers, supervisors, and the general public, in addition to his ability to sustain concentration for extended periods were compromised due to his hearing loss and tinnitus. Moreover, F.F. stated that the Veteran was unable to satisfy the standards of adequate pace, productivity, reliability, and interpersonal workplace communication due to symptoms associated with service-connected PTSD with secondary depression and history anxiety reaction. Given the Veteran's work history and the functional impairments resulting from his service-connected disabilities, the Board will resolve reasonable doubt in his favor and award entitlement to TDIU. Based on the evidence presented in this case, the Board finds that the evidence is in equipoise and therefore supports a finding that the functional impairment associated with the Veteran's disabilities is of such nature and severity as to preclude substantially gainful employment. Entitlement to an award of TDIU, to include on an extraschedular basis is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Brennae L. Brooks, 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.