Citation Nr: 21070250 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 16-51 396 DATE: November 23, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) prior to May 21, 2019, is granted. FINDING OF FACT Resolving all reasonable doubt in his favor, the Veteran's service-connected posttraumatic stress disorder (PTSD) prevented him from obtaining or maintaining substantially gainful employment prior to May 21, 2019. CONCLUSION OF LAW Prior to May 21, 2019, the criteria for entitlement to TDIU on an extraschedular basis due to PTSD alone have been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.19 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1979 to July 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2016rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This case was remanded in February 2019 and May 2020 for further development. This issue was denied by the Board in a December 2020 Board decision. The Veteran appealed that decision to the Court of Appeals for Veterans Claims (Court), which vacated the decision pursuant to a July 2021 Joint Motion for Remand (JMR). This matter is once again before the Board. Entitlement to a TDIU prior to May 21, 2019, is granted. The Veteran is currently in receipt of TDIU from May 21, 2019, to June 24, 2019. The July 2021 JMR was limited to the Board's prior denial of entitlement to TDIU prior to May 21, 2019. For the reasons discussed below, the Board finds that the Veteran was unable to obtain and maintain substantially gainful employment prior to May 21, 2019, and that extraschedular TDIU is therefore warranted. TDIU may be assigned where the schedular rating is less than total when a veteran is unable to secure or follow substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In order to meet the schedular criteria for entitlement, a veteran must have either: (i) one disability rated at 60 percent or more; or (ii) two or more disabilities, with at least one disability rated at 40 percent or more and sufficient additional disability bringing the combined rating to at least 70 percent. 38 C.F.R. § 4.16(a). 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. Therefore, rating boards should submit to the Director, Compensation Service, (Director) for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the schedular percentage standards. The rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). For the specific period on appeal (i.e., prior to May 21, 2019), the Veteran's service-connected disabilities included PTSD, rated 50 percent disabling from March 31, 2010, left wrist scar, rated noncompensable from January 10, 2007, and atrial fibrillation, rated 10 percent disabling from February 13, 2018. [The Board notes here that staged ratings have been assigned for PTSD and atrial fibrillation, but the effective date of those ratings is post May 21, 2009, and therefore irrelevant to the issue on appeal.] The Veteran does not meet the schedular criteria for entitlement to TDIU prior to May 21, 2019. The Board referred this matter to the Director for an opinion regarding extraschedular entitlement for the years 2010 and 2019. See May 2020 Board remand. In October 2020, the Director opined that the Veteran was not entitled to extraschedular TDIU at any point prior to June 25, 2019. See October 2020 VA memorandum. Despite the Veteran not meeting the schedular requirements for TDIU prior to May 21, 2019, the Board will analyze whether he is entitled to extraschedular TDIU on the merits. The Board will therefore consider whether the Veteran's service-connected PTSD, atrial fibrillation, and left wrist scar rendered him unable to secure and maintain substantially gainful employment during the relevant period. This involves consideration of two components: an economic component involving an occupation outside of a protected environment earning more than marginal income, and a non-economic component involving the Veteran's ability to secure and follow such employment. See Ray v. Wilkie, 31 Vet. App. 58 (2019). VA may consider the Veteran's level of education, special training, and previous work experience in making this determination, but may not consider age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Ferraro v. Derwinski, 1 Vet. App. (1991). Medical evidence describing the effect of each disability on the Veteran's occupational functioning is crucial to permit the Board to arrive at an assessment of employability. 38 C.F.R. § 4.1. However, the determination of whether service-connected disabilities are of sufficient severity to produce unemployability is ultimately the Board's to make. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Therefore, the Board will review the medical evidence in the context of the other evidence of record prior to reaching a conclusion regarding employability. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). The Veteran asserts that he is entitled to TDIU because he has worked a part-time job since 2009 and has only earned below or slightly above the federal poverty line. He sometimes worked with his spouse at her business, but he was not compensated. He reported that, prior to 2009, all of his attempts at employment ended due to anger issues or conflicts with co-workers or supervisors. See, e.g., August 2017 notice of disagreement. The Veteran reported that he was employed at a local high school from September 2009 to May 2019. His position was part-time and only during the academic school year. He would miss seven to 10 days of the school year due to his PTSD. He described his position as a greeter and escort. He has a high school diploma. See, e.g., July 2019 VA Form 21-8940. In October 2019, VA received two separate VA Forms 21-4192, both appearing to be completed by the employer high school or local Board of Education. They both reflect that the Veteran worked as a security guard and earned over $16,000 in the 12 months prior to his last date of employment. However, these documents also contradict themselves slightly. In general, the Form received on October 1, 2019, is more beneficial to the Veteran: it provides an earlier last day worked (May 21, 2019, rather than June 25, 2019) and that he was terminated due to insubordination (rather than just general termination). Thus, the Board will use the October 1, 2019, VA Form 21-4192 in its analysis and assigns the VA Form 21-4192 received on October 10, 2019, no probative weight. The October1, 2019, Form also notes that the Veteran was entitled to a contribution retirement plan but had not yet begun receiving benefits. The Veteran submitted an SSA earnings record. See May 2020 correspondence. After comparing the reported income to the poverty thresholds for one person, the record reflects that the Veteran earned more than the poverty threshold in 2011 through 2016. The SSA earnings report is inconsistent with the VA Form 21-4192 from his employer that reflected an income of over $16,000 in the12 months prior to June 2019. Nonetheless, the Board will resolve reasonable doubt in the Veteran's favor and use the SSA earnings report as the measure of his income, as it is more beneficial to the Veteran. During a May 2010 VA PTSD examination, the Veteran reported that he was leaving his employment at the high school to join his wife's interior design business and repair tasks. (This appears to have been short-lived, as the record reflects he continued his work at the high school, as discussed above.) He reported that his symptoms caused him significant dysfunction within various places of employment. He reported that his irritability and occasional verbal outbursts have caused him to lose employment positions in the past. However, he also reported that his psychological symptoms did not historically cause him significant disruption in completing employment-related tasks. He estimated that during the past 10 years he missed approximately four days of work, secondary to moderate to severe symptoms. He reported that symptoms of PTSD did not traditionally cause significant impact on his ability to complete daily employment functions. He stated that he understood the mechanism of his irritability turning into anger and attempted to avoid confronting stimuli which may trigger this response. In an undated statement, received by VA in May 2010, the Veteran's wife reported that he cannot "handle any pressure of any kind in his life" because his moods must remain consistent. He is very easily depressed and discouraged if he confronts obstacles. There were several situations where his assertive attitude costed him jobs. "He needs to be in a controlled, structured environment, otherwise he is not happy." Outside of work, she documented lack of social interactions and isolation as a means of preventing anger outbursts and amplification of PTSD symptoms. During a September 2016 VA examination, the Veteran reported that he was experiencing significant success in his position at the high school in terms of exceeding the requirements of his job description. He enjoyed interacting with visitors and received exclusively positive work performance reviews from his supervisor during the past several years. The position was reportedly comfortable for him because he found order and structure similar to military life. He experienced a mild decrease in severity of affective reactions to acute psychosocial stressors, including slightly greater tolerance for perceived disrespectful or foolish behaviors by others. He and his wife reported that he was easily irritated by these types of behaviors but did not exhibit symptoms with as great verbally aggressive outbursts. In April 2017, the Veteran's spouse reported that employment was always an issue for the Veteran, and he would quit or get fired due to anger management issues. She was the sole supporter of the household. See April 2017 statement. In December 2017, the Veteran's physician, Dr. R. Foss-Morgan, DO, opined that he was unable to work secondary to arthritis, refractory hypertension, atrial fibrillation, and "profound PTSD." See December 2017 statement. In February 2019, Dr. J. Mangold, PhD, opined that the Veteran had very severe limitations of social and occupational functioning since at least 2007 and that he was "incapable of working a forty-hour a week job." His PTSD symptoms prevented him from functioning independently and he could not adapt to stressful circumstances. The Veteran discussed his current part-time work and noted that he would get retirement benefits after 10 years. Notably, the employment history provided by the Veteran is different than what was provided earlier in the appeal period. Namely, Dr. Mangold's report reflects that the Veteran appeared to work one job for four years, and then only had jobs for at most a year, with most lasting only a couple of months. In February 2019 VA treatment records, the Veteran reported that he returned to work at the high school. He noted periods of mild anxiety and times of road rage, which had been manageable. Overall, he noted that he had been calm without any significant challenges or prominent symptoms. In September 2019, a private vocational consultant, Dr. A. Shipp, PhD, opined that the Veteran's PTSD hindered his ability to interact with others, tolerate supervision in the workplace, and maintain composure on a competitive work schedule since at least March 2010. The Veteran would have been unable to meet the basic work requirements for full-time work due to his PTSD since 2007. Notably, when describing the Veteran's work history, prior to his time as a security guard, she noted that he suffered a breakdown in 2007; she does not appear to discuss any work between 2007 and 2009. She opined that the only reason the Veteran had been able to maintain employment since 2009 was due to the part-time nature of the job and the predictability and consistency of the employment setting. The work performed since approximately 2007 had been part-time in nature, and it was more likely than not that the Veteran had been unable to secure and maintain substantially gainful employment, even at the sedentary level. She disagreed with health professionals opining that he could work. Dr. Shipp noted that the Veteran was fired in May 2019 from his part-time job due to insubordination. All employees were required to take sensitivity training and he refused to participate. She asserted his part-time employment at the school was sheltered because the school setting allowed for predictability and no surprises. Due to the longevity of his tenure with the high school, his verbal aggressions were tolerated more than is typical in a traditional work setting. See September 2019 private evaluation. In December 2019, Dr. P. Westcott, PsyD, opined that the Veteran had total occupational and social impairment. She opined he would have poor ability to remember work-like procedures, maintain attention for two hour segments, be punctual with customary tolerances, sustain an ordinary routine without special supervision, work in coordination with or proximity to others without distraction, make simple work-related decisions, respond appropriately to criticism from supervisors, perform at a consistent pace without an unreasonable number of breaks, and respond appropriately to changes in a routine work setting on a sustained basis. He would be very unlikely to handle normal work stress and in fact had demonstrated a history of having to escape environments when around others or reacting to anxiety. To a high degree of neuropsychological certainty, she opined that the Veteran was unable to be employed. Dr. Westcott noted that, for many years, it was clear that the Veteran was successful at keeping his PTSD symptoms at bay when in an appropriately accommodating work environment. His position at the high school afforded a unique opportunity where fellow veteran coworkers helped to accommodate for his limited frustration tolerance and the position was only part-time. See December 2019 private evaluation. In March 2020, the SSA found the Veteran to be disabled, and the disability began on May 27, 2019. The determination noted that, in a November 2019 opinion, Dr. B. Kelly, PhD, opined that the Veteran was not capable of managing funds. Indeed, Dr. Kelly opined the Veteran required oversight in management of funds due to cognitive impairment but did not otherwise opine on whether the Veteran was able to work. In August 2019 SSA correspondence, the Veteran's work history includes a job as a janitor where he worked full-time for two years from 2006 to 2008 and as a machinist where he worked full-time for two years from 2002 to 2004. An August 2019 private treatment record reflects that the Veteran had severe dizziness and lightheadedness. He had atrial fibrillation with rapid ventricular response. He was stabilized and reported that he was "back to work feeling well [with] no major limitations." In January 2021 correspondence, Dr. Wescott opined that it is at least as likely as not that the Veteran's deficiencies resulting from his PTSD have caused deficiencies in most areas since 2007. She stated that such conclusion is documented in two prior psychological examinations as well as history and collateral evidence ascertained during the course of the examination. His employment history was marked by a need to select positions that allowed him to work in an isolated, independent environment to limit the stress of working with others, or alternatively working with other military personnel who proactively took over duties/responsibilities when needed due to a common understanding of PTSD triggers. The record also includes an October 2021 Vocational Assessment Addendum by Shannon Hollander, who has a Master's in Rehabilitation Counseling and is a Certified Rehabilitation Counselor. In it, she noted the Veteran was in a part-time contract position from 2009 to 2019, which required him to work five hours a day for 180 days a year. He experienced trouble getting along with the administration and teachers, stating they always thought he was wrong in any situation. He experienced anger and verbal outbursts or aggression and was assisted by his co-workers. He was ultimately terminated due to his refusal to participate in required sensitivity training. The Vocational Counselor determined that the records are "consistent with an individual who is disabled and more likely than not unable to secure and follow substantially gainful employment, including unskilled sedentary employment, from at least March 2010 to the present, due to his service-connected PTSD." She concluded that the Veteran's employer allowed him to work outside of regular expectations, such as not engaging in outbursts or arguments on the job and remaining free from distraction or interruption from coworkers. He experienced significant difficulties with irritability, anger, and verbal outbursts due to his PTSD, including during work. She further noted his attempts to avoid confronting stimuli and the fact that he did not exhibit symptoms with as great verbally aggressive outbursts when he was irritated by perceived disrespectful or foolish behavior by others. While he attempted to avoid triggers to his PTSD symptoms, he continued to experience verbally aggressive outbursts when irritated. While employers may overlook one verbal outburst or altercation at work, recurring verbal outbursts and altercations typically result in termination. Although the Veteran was able to maintain his work as a security guard for 10 years even with his limitations, "this is an example of a sheltered work environment more so than competitive substantially gainful employment." His need to have fellow coworkers assist him in employment meant that his employer was tolerant of his behavior. The distracting nature of his anger and verbal outbursts or aggressions more likely than not resulted in excessive off-task behavior for him and his coworkers. "This is not generally tolerated in competitive employment as employees are expected to remain on task for 90 percent of the workday and maintain adequate pace and productivity, as well as attend to work tasks and remain free from distraction or interruption from co-workers." The fact that he was not reprimanded or penalized for his behavior demonstrates he was provided a special accommodation to maintain employment. His refusal to attend sensitivity training demonstrated his inability to follow directions or supervision due to his PTSD, despite the provided accommodations. Accordingly, she concluded that his employment as a security guard "is best described as a sheltered work environment given the accommodations provided to maintain this employment despite the limitations from his service-connected PTSD." She further noted that her opinion is rendered despite any medical professional's opinion that the Veteran could engage in work activity with his limitations. She explained that while medical professionals are qualified to define the physical and mental limitations extending from a condition, they are not qualified to translate this information into the degree of impact on the ability to work. A vocational expert is "uniquely qualified" to evaluate how specific limitations impact the performance of work activity. She noted her past experience as a vocational consultant for SSA and with the VA as a Vocational Rehabilitation Counselor and confirmed that only the Veteran's service-connected disabilities were considered in formulating her opinion. The Board notes that the Veteran did not make above the Federal poverty line in 2010 and 2017 to 2019. While this is not dispositive of whether he could secure and follow substantially gainful occupation, the Board does find it significant combined with the fact that his coworkers assisted him in completing tasks required for his employment. The Board acknowledges that the job provided an environment that was favorable to his needs, such as predictability and it being part-time work. (CONTINUED ON NEXT PAGE) Given his symptoms, the opinion by the private physicians and private vocational consultants, and resolving all reasonable doubt in his favor, the Board finds that the Veteran was precluded from all non-marginal employment due to his service-connected PTSD prior to May 21, 2019. TDIU on an extraschedular basis is therefore warranted under 38 C.F.R. § 4.16(b). E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Matta, 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.