Citation Nr: 21067414 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 19-00 523A DATE: November 4, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability of post-traumatic stress disorder (PTSD) prior to June 30, 2015 is denied. FINDING OF FACT The Veteran's service-connected PTSD not been shown to preclude substantially gainful employment prior to June 30, 2015. CONCLUSION OF LAW The criteria for a TDIU have not been met prior to June 30, 2015. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1969 to December 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2017 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for PTSD and assigned an initial 30 percent rating. In a March 2020 Board decision, TDIU was granted effective June 30, 2015. The Veteran appealed the decision to the extent it denied TDIU prior to June 30, 2015. In a January 2021 Order, the Court of Appeals for Veterans' Claims (CAVC) granted a Joint Motion for Partial Remand (JMPR) and vacated the Board's decision for entitlement to TDIU prior to June 30, 2015. The Board remanded this matter in May 2021 to address the development required per the JMPR to include obtaining an extraschedular opinion which was obtained in August 2021. While this matter was pending on remand status, the Veteran withdrew the appeal before the CAVC only. Thus the CAVC dismissed the appeal before it in May 2021. However this matter remains pending before the Board as the Veteran has not withdrawn the Board appeal. The Board notes that there were misfiled documents belonging to another Veteran that pertained to PTSD symptoms received in September 2012. While it is not clear whether these documents influenced the grant of service connection for PTSD with an initial 30 percent rating effective June 30, 2015, which formed the underpinnings for the TDIU claim, it does not appear that these documents were relied upon in any actual TDIU adjudication or analysis including the August 2021 extraschedular opinion. Entitlement to TDIU prior to 6/30/15 The Veteran contends that he is entitled to TDIU on an extraschedular basis for the appeal period prior to June 30, 2015. He is shown to be service connected for PTSD rated 30 percent disabling for this period from initial entitlement on June 30, 2015. The current appellate period for consideration is from April 12, 2013 to June 30, 2015, based on the appeal period for the increased rating claim for PTSD herein. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A TDIU may be assigned when the schedular rating for service-connected disabilities is less than 100 percent when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age, provided that, if there is only one such disability, it is ratable at 60 percent or more, or, if there are two or more disabilities, there is at least one disability ratable at 40 percent or more and additional disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16. Under 38 C.F.R. § 4.16 (b), all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation and Pension 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 § 4.16(a). The Veteran's service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not his age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. In determining whether a Veteran is entitled to a total disability rating based upon individual unemployability, the Veteran's non-service-connected disabilities and advancing age are not for consideration. See 38 C.F.R. § 3.341 (a); Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992). The Board's task is to determine whether there are circumstances apart from the non-service-connected conditions and advancing age which would justify a total disability rating based on unemployability. In other words, the Board must determine if there are circumstances, apart from non-service-connected disabilities, that place this Veteran in a different position than other veterans. See 38 C.F.R. § 4.16 (a); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1995). 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). Entitlement to TDIU is based on an individual's particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The Veteran contends that he is entitled to TDIU due to service-connected disabilities. He raised TDIU in his December 2017 NOD regarding the initial evaluation and effective date of the grant of PTSD. In his December 2018 application for TDIU benefits based on PTSD symptoms, he reported having finished high school and had 3 years of college. He had additional training as an automobile mechanic and automatic transmission repair. He reported having worked from February 1973 to June 2003 in factory work at the same employer. He claimed that his disability affected his full time employment in 2010 and he became too disabled to work on April 30, 2012. In a February 2019 VA 21-4192 Request for employment information, he described having retired and last worked in June 2003 having taken a buyout. The type of work he had been in was described as "production." As noted above, prior to June 30, 2015, the Veteran's combined evaluation did not meet the schedular criteria for a TDIU, as his lone service connected disability of PTSD disability rating was 30 percent disabling. Shortly prior to the April 12, 2013 claim, a January 2012 VA examination which diagnosed anxiety disorder NOS, determined the Veteran to have occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress or symptoms controlled by medication. Regarding occupational and educational history, he worked at various odd jobs in school before joining the military. He did some factory and a little mechanical work. After the military he worked in the factory for 30 years and was retired from OFS, formerly Lucent Technologies. He had 2 years college. He was an average student with no particular honors or awards. He reported some problems with insomnia, tension, and memory. He occasionally grinds his teeth out of habit. Symptoms included anxiety, chronic sleep impairment, mild memory loss such as forgetting names, directions, recent events. The records from shortly prior to the April 12, 2013 effective date of this claim show that the Veteran's PTSD symptoms included sleep disturbances, irritability, anger, difficulty concentrating, hypervigilance and feelings of detachment from others. He also had depressed moods lasting a few days at a time. These symptoms were noted in records from September 2012 and November 2012. Occupationally, he was noted to have been retired from working in manufacturing since 2003, with a stable employment history having worked in a factory for 31 years. Records from the pendency of this claim after April 12, 2013 but prior to June 30, 2015 included a May 2013 evaluation which determined the Veteran did not meet the full criteria for PTSD or criteria for treatment in the program, with diagnoses of anxiety disorder not otherwise specified (NOS) and depressive disorder NOS. During the interview he denied any acute crisis, or suicidal or homicidal ideation. Mental status examination was unremarkable except for anxious mood noted. However, a letter from the same evaluator the following day noted that the Veteran reported ongoing symptoms consistent with PTSD and depression. He also reported functional impairment regarding the impact of these symptoms on his sleep, relationships, and overall well-being. Records from July and August 2014 showed that the primary mental health complaints centered around sleep issues, with difficulties getting to and staying asleep, as well as dreams and intrusive thoughts about his past experiences in Vietnam and other stressful times. He also described discomfort in crowds and distance from others in the July 2014 records. His mood was also described as down in the records from July 2014, while the August 2014 records described him as having lost interest in doing things he used to enjoy and also had test findings consistent with severe depression. However, his mental status examinations did not reveal unusual thought processes or content, suicidal or homicidal ideations or other findings of a major thought disorder. The August 2014 record noted the Veteran to live with his wife of 42 years and his daily activities included working on yard equipment, using YouTube to fix items, mowing the lawn and engaging in other yard work, and taking out the trash. He had a narrator program for his computer and listened to the news. He also watched TV with wife once a week. A March 2015 VA examination report filled out by a psychiatrist and submitted by the Veteran, noted symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, inability to establish and maintain effective relationships. He was described as having occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The Veteran was noted to have chronic sleep impairment, problems with irritability and anxiety in crowds and social situations. His PTSD symptoms were noted to include ongoing nightmares, flashbacks, moods of hopelessness, irritability, and lack of motivation or energy. A May 2015 VA examination which diagnosed unspecified depressive disorder and unspecified anxiety disorder but no diagnosis of PTSD, noted the Veteran to have occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. Symptoms noted included depressed mood, and chronic sleep impairment. On mental status examination the Veteran was neatly dressed, pleasant and cooperative. He was alert to person place time and date. He presented with neutral mood and affect, although reports of symptoms of depression and anxiety were described in the interview. In August 2021 an extraschedular opinion was obtained from the Director of Compensation and Pension. It was noted that prior to being granted TDIU on June 30, 2015 the Veteran was in receipt of a 30 percent rating for PTSD from April 12, 2013. The Director reviewed the pertinent medical evidence and legal criteria, noting that the Veteran has a high school education and completed three years of college. The medical evidence prior to June 2015 showed the Veteran was diagnosed with anxiety with occupational and social impairment due to mild transient symptoms, which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress. The Veteran displayed symptoms of anxiety, chronic sleep impairment and mild memory loss. The Director provided the following opinion. "Although there are limitations due to the Veteran's mental condition, the preponderance of the evidence does not show that the service-connected condition prohibits the Veteran from obtaining or maintaining gainful employment." The Director noted that the American workplace has had a dramatic shift in the labor force over the last several decades. It has long been known that Americans generally have less strenuous jobs compared to those of years ago. The decline is due in part to the increasing reliance on computers, the Internet and e-mail. There are many jobs in the workplace that require only light activity and for which a person with a high school education would be capable of performing. That is, a person need not be college educated or highly skilled to be productive in a today's work environment. In this instant case, it was noted the Veteran has multiple years of college education, thus there is an aptitude shown to be able to learn new skills. The test of whether a person is unable to pursue substantially gainful employment is whether a job is realistically within the physical and mental capabilities of the claimant under Van Hoose v. Brown and as a result there is no evidence of unemployability under any circumstances. The evidence only shows that he may be limited in performing the duties associated with a certain position; it does not convincingly show that his ability to work in other suitable positions is entirely compromised by disabilities he incurred in service pursuant to Brown v. Brown. The Board points out that although it is required to obtain the Director's decision before awarding extraschedular TDIU benefits in the first instance, the Board is not bound by the Director's decision or otherwise limited in its scope of review of that determination. Wages v. McDonald, 27 Vet. App. 233, 236-38 (2015) (citing 38 U.S.C. §§ 511 (a), 7104(a); 38 C.F.R. § 4.16 (b)). In this case, the issue of entitlement to an extraschedular TDIU pursuant to 38 C.F.R. § 4.16 (b) during a portion of the claim period has already been referred to the Director and the Director has issued a decision. Therefore, the TDIU issue is now before the Board and can be addressed on the merits. Cf. Anderson v. Shinseki, 22 Vet. App. 423, 427 (2009) ("[T]here is no restriction on the Board's ability to review the denial of an extraschedular rating [under 38 C.F.R. § 3.321 (b)(1)] on appeal"). After careful consideration of the entire record, the Board finds that the preponderance of the evidence is against a finding that the Veteran is unable to obtain and maintain substantially gainful employment consistent with his education and occupational experience because of his service-connected PTSD symptoms. The Board must address the impact of this disorder on his ability to obtain and maintain employment, with consideration of 38 C.F.R. § 4.16 (a) (applicable in this instance where the schedular criteria for TDIU is not shown); VanHoose v. Brown, 4 Vet. App. 361 (1993). For a veteran to prevail on a claim for a total disability evaluation based on individual unemployability due to service -connected disorders, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question for the Board is whether a veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. See 38 C.F.R. § 4.16 (a); VanHoose v. Brown, 4 Vet. App. 361 (1993). (Continued on the next page) On review, the Board lends the greatest weight to the findings and opinions of the VA examiners from the March 2015 and May 2015 VA examinations, both of which only show his PTSD symptoms to result in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. The earlier VA examination prior to the pendency of this claim likewise showed the same degree of occupational and social impairment. The examinations further did not show any objective findings of a psychiatric disorder resulting in impairment of thought, perceptual disturbance or a cognitive disorder that would interfere with his ability to engage in gainful employment. The Veteran's educational and work history reflects he has some college education, as well as some specialized training in automotive mechanics. His work history is shown to have been steady for over 30 years with no interference due to psychiatric symptoms shown. His retirement in 2003 was based on a buyout as reported by the Veteran. Finally his daily activities reported in August 2014 are noted include regular maintenance on his yard equipment, repairs, and yard work, which suggests he remains capable of engaging in activities consistent with work activities. A TDIU award serves an important role in ensuring that veterans who are unable to work due to their service-connected disabilities are properly compensated. Where, however, a veteran's disabilities do not result in lost income or where legally required accommodations permit a veteran to maintain gainful employment, an award of TDIU does not serve its intended purpose. Cantrell v. Shulkin, 28 Vet. App. 382, 396 (2017) (Lance, J., concurring). While acknowledging any functional limitations associated with PTSD, the overall evidence of record does not reflect that the Veteran was precluded from gainful employment for which he was qualified due to his service-connected disabilities. Thus, entitlement to a TDIU due to service-connected PTSD is denied. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Eckart 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.