Citation Nr: 21065932 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 04-04 607 DATE: October 28, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis, for the period on appeal prior to November 9, 2015, is granted. FINDING OF FACT For the period on appeal prior to November 9, 2015, the Veteran's service-connected back condition rendered him unable to secure and follow a substantially gainful occupation. CONCLUSION OF LAW For the period on appeal prior to November 9, 2015, the criteria for entitlement to TDIU on an extraschedular basis have been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 4.16(b) (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1981 to July 1984, and from December 1985 to August 1987. This matter comes before the Board of Veterans' Appeals on appeal from an August 2004 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that this case has an extensive procedural history, including 7 prior remand orders by the Board, a June 2013 Board decision denying the instant issue which was then appealed to the United States Court of Appeals for Veterans Claims (Court). During the course of the appeal, the Veteran presented testimony before the Board in a May 2006 hearing. A transcript of that proceeding is of record. Most recently, the issue on appeal was remanded in a December 2020 Board decision for further development. The case has now been returned to the Board for further appellate action. Entitlement to a TDIU rating on an extraschedular basis. Entitlement to a TDIU on a schedular basis was granted in a December 2015 rating decision, with an effective date of November 9, 2015. Notably, as of that date, the Veteran's combined disability rating is 70 percent, made up of a 70 percent rating for his service-connected major depressive disorder and a 10 percent rating for residuals of aseptic meningitis with headaches. However, during the period on appeal prior to November 9, 2015, the Veteran's combined disability rating was 40 percent, consisting of a 30 percent rating for his major depressive disorder disability and a 10 percent rating for residuals of aseptic meningitis. As the Veteran does not meet the schedular criteria for a TDIU prior to November 9, 2015, (see 38 C.F.R. § 4.16(a)), his claim has been considered under the criteria of 38 C.F.R. § 4.16(b). Upon review of the Veterans claims file, the Director of Compensation Service (Director) recommended a denial of entitlement to an extraschedular TDIU in August 2021, finding that the evidence of record does not support a finding that the Veteran is unable to secure or follow substantially gainful employment due to his service-connected disabilities. This opinion, as well as the decision review officer's July 2021 recommendation to the Director to grant the claim, is not considered as evidence in the Board's review of the claim. As the Veteran's claim of entitlement to a TDIU on an extraschedular basis has been addressed by the Director, the Board now has jurisdiction to address the merits of the Veteran's claim. Wages v. McDonald, 27 Vet. App. 233, 239 (2015). In a December 2003 employment information report, the Veteran's previous employer indicated that the termination of his employment was due to his inability to continue working "due to his disability." See December 2003, VA Form 21-4192. However, the specific disability referred to in this letter is not identified. Treatment notes from the Veteran's VA psychiatrist from 2004 to 2006 reflect that the Veteran reported ongoing problems with severe chronic mental health symptoms, including: poor sleep, nightmares, intrusive thoughts, flashbacks, hypervigilance, and startle response. It was also detailed that the Veteran reported feeling depressed. The VA psychiatrist repeatedly provided an unambiguous opinion that the Veteran was permanently disabled and unemployable. See August 2004, May 2005, April 2006, VA Treatment Records. Although the opinion does not specifically state that the unemployability is due to the Veteran's mental health condition, the Board finds that any reasonable doubt in that regard must be weighed in favor of the claim. Furthermore, it is logical to attribute the opinion to the Veteran's later service-connected major depressive disorder disability, as the psychiatrist was addressing mental health and did not have the requisite expertise to opine on matters outside of his employ as a psychiatrist. Throughout the appeal, the Veteran submitted to several VA examinations. A January 2011 examination report reflects that the Veteran's mental health symptoms were categorized as being severe at times, in relation to his employability. It was opined that the Veteran suffered from more than moderately severe effects, both socially and occupationally, from his symptomatology. Most recently, a retrospective opinion concerning the Veteran's employability was obtained in July 2021. The examiner expressed that the Veteran's functional impairments relating to employment and resulting from his service-connected disabilities include being unable to interact with customers and coworkers; unable to adapt to changes or stress and demands at work; unable to work in public or in an enclosed space or cubicle; and unable to work in a loosely supervised situation. Records indicate that the Veteran has provided varying accounts of his last date of full-time employment, ranging from 1999 to 2003. In a December 2003 employment verification, his previous employer stated that the Veteran last physically worked in June 2000, with his last date of payment received in December 2000. See December 2003, VA Form 21-4192. Likewise, the Veteran has noted slightly different variations in his level of training and education, notating somewhere between 1 and 2 years of college education. It is confirmed throughout all of the records that the Veteran worked for many years as a truck driver after his active-duty service. There is no other occupation identified within his records, or any additional training or certifications of note. In his hearing before the Board in May 2006, very limited testimony was obtained concerning the issue of entitlement to a TDIU as the Veteran had several service-connections issues pending which could have impacted the TDIU determination. In review of the foregoing, the Board finds that the Veteran's reports of unemployability have been consistent and are corroborated by his medical records. Likewise, the debilitating nature of his condition, in terms of its effect on his employability, is repeatedly shown throughout the records. The Board places great weight on the medical opinion consistently provided by his treating psychiatrist throughout the Veteran's early mental health treatment. This opinion provided an uncontroverted medical assessment that the Veteran's mental health disability rendered him unemployable. The Board also places great weight on the July 2021 and January 2011 VA examination reports, which provide consistent opinions with those reflected within his treatment records and further corroborate the Veteran's assertion of unemployability due to his mental health disability. The Board finds that the evidence is at least in relative equipoise as to whether the Veteran's service-connected disabilities rendered him unemployable or unable to secure and follow a substantially gainful occupation during the period on appeal prior to November 9, 2015. Accordingly, entitlement to a TDIU on an extraschedular basis, for the period on appeal prior to November 9, 2015, is granted. Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Sutherell, 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.