Citation Nr: 21070972 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 11-33 229 DATE: November 29, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) on an extraschedular basis from April 2, 2010 to March 18, 2015 is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his service-connected posttraumatic stress disorder (PTSD) with unspecified depressive disorder and alcohol use disorder functionally impaired his ability to secure or follow any occupation beyond marginal employment in a protected environment from April 2, 2010 to March 18, 2015. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for an extraschedular TDIU from April 2, 2010 to March 18, 2015 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1967 to February 1969. In February 2018, the Board of Veterans' Appeals (Board) denied the Veteran's claim for a TDIU for the period prior to March 19, 2015. He appealed the Board's decision to the Court of Appeals for Veterans Claims (Court). In May 2019, the Court, in pertinent part, vacated the Board's February 2018 decision, and remanded the matter to the Board for readjudication. In April 2020, the Board remanded the claim for the Executive Director of Compensation Service to address extraschedular consideration. The Executive Director of Compensation Service opined against the Veteran's TDIU claim on an extraschedular basis in January 2021. The Executive Director's decision is not evidence, but is rather akin to a de facto agency of original jurisdiction (AOJ) decision and that the Board must conduct de novo review of this decision. See Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015) (holding that the Board conducts de novo review of the Director's decision denying extraschedular consideration). The Court reaffirmed that the Board has jurisdiction to review the entirety of the Executive Director's decision denying or granting an extraschedular rating and elaborated that the Board is authorized to assign an extraschedular rating when appropriate. Kuppamala v. McDonald, 27 Vet. App. 447, 456-57 (2015). Extraschedular TDIU In May 2017, a Decision Review Officer (DRO) decision granted a TDIU, with an effective date of March 19, 2015. The Veteran contends that he has been unable to secure and maintain a substantially gainful occupation since April 6, 2009. With the resolution of reasonable doubt in his favor, the Board finds that he has been unable to secure and maintain substantially gainful employment since April 2, 2010 and is entitled to a TDIU based on his service-connected PTSD since then. A TDIU may be assigned when the schedular rating is less than 100 percent if it is found that a veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities (as long as one disability is ratable at 40 percent or more, and there are sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more). Marginal employment is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). The central question is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability," and not whether the Veteran could find employment. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether a veteran is unemployable for VA purposes, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Hersey v. Derwinski, 2 Vet. App. 91 (1992); Faust v. West, 13 Vet. App. 342 (2000). A veteran need not show 100 percent unemployability to be entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). In accordance with 38 C.F.R. § 4.16(b), the assignment of a TDIU on an extraschedular basis may be referred to, and considered by, the Executive Director, Compensation Service, when the appropriate circumstances arise, to determine whether a veteran is unemployable by reason of service-connected disabilities but who fails to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). Here, prior to March 19, 2015, the Veteran was 30 percent service-connected for posttraumatic stress disorder (PTSD) with unspecified depressive disorder and alcohol use disorder. His combined disability rating was 30 percent. Thus, pursuant to 38 C.F.R. § 4.16 (a), he did not meet the minimum percentage requirements for a TDIU prior to March 19, 2015. Notwithstanding, the Board must consider whether the Veteran is entitled to a TDIU on an extraschedular basis. If a veteran fails to meet the threshold minimum percentage standards in 38 C.F.R. § 4.16(a), rating boards should refer to the Executive Director of Compensation Service for extraschedular consideration in all cases where the veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b); Fanning v. Brown, 4 Vet. App. 225 (1993). The record reveals that the Veteran has not worked in a gainful occupation since April 1, 2010, the day he retired from the United States Postal Service (USPS), where he worked as a mail carrier. See Application For Increased Compensation Based On Unemployability Form (VA Form 21-8940), May 2015, May 2017, March 2020. His case was referred to the Executive Director of Compensation Service for extraschedular consideration in December 2020. In January 2021, after reviewing the evidence, the Executive Director denied a TDIU on an extraschedular basis. Notably, the Director opined that, while the Veteran has limitations caused by service-connected disabilities, the overall evidence does not support a finding that any service-connected condition, alone or in conjunction, presented such an exceptional situation as to prevent gainful employment prior to March 19, 2015. However, as previously explained, the Executive Director of Compensation Service's negative opinion is not binding on the Board because it is a decision of fact. Thus, the Board acknowledges this adverse decision, but notes that it will be reviewed in light of the total evidence of record, as opposed to using it as a sole determining factor in making a final decision on the Veteran's claim. The Veteran's record contains at least three completed copies of the VA Form 21-8940. On his VA Form 21-8940 received in May 2017, he indicated that his last full-time employment, at the USPS where he worked as a mail carrier, ended in April 2010. Subsequent to that, he worked on a part-time basis (20 hours per week) with C&C Motors, in car sales, from 2010 to 2011. See May 2015 VA Form 21-8940. He noted that his highest gross earnings per month amounted to $600.00. Id. He also indicated that he was self-employed from 2011 to the present, for 30 hours a week, earning a maximum of $700.00 per month. Id. He noted that his total earned income for the past 12 months was $12,000.00. He completed four years of high school and one year of college. Id. On a Request For Employment Information Form, obtained in July 2015, one of the Veteran's former employers, C&C Motors, indicated that the Veteran was employed in sales and maintenance from March 2011 to October 2011, earning a total of $5,523.24. He did not lose any time from work during the last 12 months with the company due to his disabilities. The employer noted that the Veteran was terminated because the business no longer needed his services. The regulatory phrase "substantially gainful occupation" refers to employment that "is ordinarily followed by the nondisabled to earn their livelihoods with earnings common to the particular occupation in the community where the Veteran resides." Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). Further, "substantially gainful occupation" within the regulatory meaning specifically excludes marginal employment that produces income under poverty thresholds. 38 C.F.R. § 4.16 (a). Importantly, regardless of the Veteran's income level, marginal employment may exist in the factual circumstances, where the Veteran performs most or all the work in a so-called protected environment such as a family business or sheltered workshop. Id. The Board finds this to be the case for the Veteran since he retired from the USPS in April 2010. Notably, the Board finds that he was marginally employed in a protected environment at C&C Motors, where his friend accommodated his requests for flexibility. He was also marginally employed in a protected environment after leaving C&C Motors, while working for himself. Prior to March 15, 2015, both VA and private treatment records reflect PTSD symptoms such as sleep problems, mental fatigue, lethargy and motivation disturbances, flattened affect, mood disturbances, low self-esteem, fleeting suicidal ideation, anxiety, hypervigilance, irritability and anger, memory impairment, a short attention span, low tolerance or difficulty adapting to stressful circumstances, mistrust of others, a tendency to withdraw or isolate, and difficulty with relationships. See, for e.g., August 2009 VA Examination Report. It was noted that these symptoms resulted in decreased concentration, difficulty following instructions, increased absenteeism, and poor social interaction at work. Id. A December 2010 private treatment record reveals that the Veteran's disability had a very strong negative impact on his life, including work. A March 2011 VA treatment record shows that the Veteran was easily irritated at his part-time job. In December 2011, the Veteran's co-workers at the USPS submitted statements indicating that that he had problems with management and fellow employees. They mentioned that the Veteran had shouting matches with supervisors, even leaving a supervisor in tears. Some co-workers expected the Veteran to lose his job. Also, in December 2011, a private treatment report notes a significant increase in the Veteran's symptoms. In a January 2012 VA treatment record, the Veteran reported quitting his part-time job because he got irritated with his co-workers. In a March 2012 private treatment record, it was noted that team function would be difficult for the Veteran because his mind was usually elsewhere. In a March 2020 affidavit submitted by the Veteran, he stated that he worked with the USPS as a mail carrier for 28 years, where he spent most of his time (approximately 90 percent) alone in his mail truck. He described having intrusive thoughts and flashbacks at work, which distracted him from his work. He also stated that he struggled with anger management issues which sometimes led to road rage and conflicts with his co-workers and supervisors. He noted that, after retiring from the USPS, his childhood friend offered him a part-time job at C&C Motors, where he was responsible for making sure that cars were clean, preparing cars for sale, and sometimes selling cars. He indicated that he left that job to take care of an associate's antique car collection, as an independent contractor. He discussed having autonomy in that role (with flexible part-time hours) and being able to start and stop (leave) when he chooses. In a vocational assessment report, submitted in July 2021, a vocational consultant opined that the Veteran's PTSD at least as likely as not rendered him unable to secure and follow substantially gainful employment since at least April 2009. He stated that the Veteran's psychiatric symptoms distracted him to an extent that would preclude him from sustained concentration on work tasks for two consecutive hours, as is required in competitive employment settings, since at least April 2009. The vocational consultant noted that, given the Veteran's limitations remaining on task and subsequently reduced pace, in addition to his difficulties starting and completing tasks independently, he would also at least as likely as not need regular redirection and reminders to remain on task, repetition of instructions, assistance with job tasks, and encouragement from his supervisor, which are not tolerated on a frequent and repeated basis in competitive employment. The vocational consultant stated that the Veteran's chronic psychiatric symptoms render him unable to meet employer expectations of adequate pace and that productivity would be markedly compromised as he would at least as likely as not be considered an unreliable and unproductive employee, regardless of skill or exertional level of the position. The vocational consultant further noted that the Veteran's PTSD symptoms limit him to working only marginally as an independent contractor performing automobile restoration. The vocational consultant concluded that the Veteran is only able to sustain his current marginal employment because he is not held to minimum production standards in this position, can take time off as needed, and is essentially able to work at his own pace with no set schedule. The vocational consultant interviewed the Veteran and reviewed his VA claims file. In September 2021, the Veteran's attorney presented arguments stating that the Veteran has been working in a marginal capacity, restoring classic cars, but misses up to six months of work a year due to PTSD. The attorney noted that, in 2011, the Veteran worked in a shop maintaining cars as well, but he was unable to maintain the job and left after just seven months. Prior to that, he worked for the USPS as a mail carrier, but often had altercations with supervisors and colleagues, experienced flashbacks while working, and got road rage while driving on the job. The attorney noted that the Veteran's past work as a mail carrier was performed in a protected work environment, from at least April 2009 to April 2010, and is not reflective of substantially gainful employment. The attorney referred to remarks from the vocational consultant, who opined that the Veteran received accommodations not generally permitted or tolerated in competitive employment (due to his anger, irritability, and unprofessional and inappropriate interactions with co-workers and supervisors). The vocational consultant explained that these negative behaviors would not have been tolerated in a traditional work setting. The Board has carefully considered statements from examiners, the Veteran, the Veteran's attorney, his former co-workers, and the vocational consultant regarding the effects of his service-connected disability on his employability and finds that the positive and negative evidence regarding his TDIU claim is in relative equipoise. The ultimate TDIU decision is the responsibility of a VA adjudicator and not a medical examiner. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Here, with the resolution of reasonable doubt in the Veteran's favor, the Board finds that his service-connected PTSD prevented him from securing or following a substantially gainful occupation since April 2, 2010, given his work history, his education, and the resulting symptoms of this disability. The evidence in its entirety shows that, since the Veteran retired from his mail carrier position at the USPS on April 1, 2010, his PTSD symptoms functionally limited him to marginal employment in a protected environment, in his subsequent part-time positions maintaining and restoring vehicles. As such, the Board finds that his service-connected PTSD rendered him unable to obtain and maintain substantially gainful employment since April 2, 2010, in light of his educational and work background. The Board acknowledges the Veteran's arguments, through his attorney, that he was employed in a marginal capacity since April 6, 2009, when he was still working with the USPS. However, the Board does not find this to be the case. In the Veteran's own words, during his 28 years as a mail carrier with the USPS, which ended on April 1, 2010, he "spent the majority of his time (approximately 90 percent) alone in his mail truck." See Veteran's March 2020 Affidavit. Although he mentioned that his PTSD symptoms caused him to experience some problems while communicating with his former supervisors and co-workers at the USPS, the evidence shows that he did not have such frequent interactions with his former supervisors and co-workers for this to impact his work severely. Contrary to the opinion of the vocational consultant, the Board finds that the Veteran's job as a mail carrier did not require accommodations not generally permitted or tolerated in competitive employment because the job, by itself, required him to spend a significant amount of time working alone. Accordingly, the evidence of record shows that the Veteran's service-connected PTSD more likely than not functionally limited him to marginal employment in a protected environment since April 2, 2010, which effectively precluded him from securing and following a substantially gainful occupation. The claim for a TDIU on an extraschedular basis is granted from April 2, 2010 to March 18, 2015. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Trowers, 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.