Citation Nr: 21073680 Decision Date: 12/09/21 Archive Date: 12/09/21 DOCKET NO. 11-12 389 DATE: December 9, 2021 ISSUE Entitlement to an extraschedular total disability rating based on individual unemployability (TDIU) under 38 C.F.R. § 4.16 (b), prior to February 7, 2017. ORDER Entitlement to an extraschedular total disability rating based on individual unemployability (TDIU) under 38 C.F.R. § 4.16 (b), prior to February 7, 2017, is granted. FINDINGS OF FACT 1. Prior to February 7, 2017, the Veteran was service-connected for posttraumatic stress disorder (PTSD), rated as 50 percent disabling; tinnitus, rated as 10 percent disabling; and a left ear hearing loss disability, rated as noncompensable. His combined rating was 60 percent. 2. Prior to February 7, 2017, it is at least as likely as not that the Veteran's service-connected disabilities prevented him from engaging in substantially gainful employment. CONCLUSION OF LAW Resolving the benefit of the doubt in the Veteran's favor, the criteria for a finding of a TDIU under 38 C.F.R. 4.16 (b) were met prior to February 7, 2017. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 4.3, 4.16(b), 4.18. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from December 1969 to December 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a January 2013 videoconference Board hearing before a Veterans Law Judge (VLJ). In April 2018, the Veteran was informed that the presiding VLJ was no longer employed by the Board, and hence he was offered a new hearing. 38 U.S.C. § 7107; 38 C.F.R. § 20.707. In a May 2018 correspondence, he declined a new hearing. Therefore, the Board will proceed with adjudication of the appeal. In August 2018, the Board denied the Veteran's claim for entitlement to TDIU. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court), who pursuant to a March 2019 Joint Motion for Partial Remand (JMPR), vacated the Board's denial and remanded the matter for readjudication. In an August 2020 rating decision, the RO granted a 70 percent rating for the Veteran's PTSD, effective April 7, 2017. Based on the 70 percent grant, the RO also granted entitlement to TDIU on a schedular basis, effective April 7, 2017. However, since the TDIU was not granted for the entire period on appeal, the claim remains on appeal for the period prior to the effective date of the grant (February 7, 2017). See Harper v. Wilkie, 30 Vet. App. 356 (2018). Entitlement to an extraschedular TDIU, prior to February 7, 2017, under 38 C.F.R. § 4.16 (b) The Veteran contends that he is entitled to an extraschedular TDIU, prior to February 7, 2017, because his service-connected PTSD precluded him from maintaining gainful employment. The Veteran contends that during his employment at the railroad everything was a struggle. He contends that it was difficult to follow instructions and to be around people while "fighting [his] Vietnam demons"; the other person on the two-man crew did not understand him because of his outbursts. For the reasons explained below, the Board finds that entitlement to an extraschedular TDIU, prior to February 7, 2017, is warranted. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, 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, this disability shall be ratable at 60 percent or more, and that, 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). Even when the criteria under 38 C.F.R. § 4.16 (a) are not met, entitlement to a TDIU on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. §4.16 (b). The Board does not have the authority to assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Rating boards will refer to the Director of the 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 requirements set forth in 38 C.F.R. § 4.16 (a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (reasonable doubt to be resolved in veteran's favor). Prior to February 7, 2017, the Veteran was service-connected for PTSD, rated as 50 percent disabling; tinnitus, rated as 10 percent disabling; and a left ear hearing loss disability, rated as noncompensable. His combined rating was 60 percent. Therefore, the Veteran did not meet the requirements for TDIU under 38 C.F.R. § 4.16 (a) prior to February 7, 2017. In its February 2021 remand, the Board referred the Veteran's claim to the VA Director of the Compensation Service, for extraschedular consideration under the provisions of 38 C.F.R. § 4.16 (b). The Director of Compensation Service considered whether extraschedular consideration was warranted in a February 2021 decision and determined that individual unemployability benefits were not warranted. Consequently, as the claim has been denied on an extraschedular basis by the Chief of Compensation Service, the Board may now consider whether a TDIU is warranted under the provisions of 38 C.F.R. § 4.16 (b). In June 2011, there is evidence of the Veteran having been at risk of suspension from work as a train conductor for falling asleep and passing a red light. See October 2015 VA treatment record. Vet Center records indicate that experienced symptoms of rage; avoidance; and argumentative behavior. At the February 2013 Board hearing, the Veteran testified that he was receiving railroad disability benefits from his disability resulting in blood clots in his lungs, but stated that he could not work anymore due to his PTSD. See Board Hearing Transcript, p. 9. On the Veteran's October 2015 VA Form 21-8940, he indicated that he had worked as a conductor from 1974 to 2011. He reported having 1 year of college education and no additional experience. VA treatment records indicate that the Veteran reported a decline in sleep and an increase in startle response. A December 2019 psychiatric report authored by Dr. M.C. painted a grim picture of the daily struggles the Veteran encountered as a result of his PTSD, which also included alcohol abuse to self-medicate. Dr. M.C. addressed the narrative that the Veteran may have stopped working for reasons other than his PTSD. In that regard, the Veteran revealed that he did not stop working due to pulmonary embolism, but rather used the disease as an excuse to remove himself from his work environment that he was struggling to maintain. In the Director of Compensation's advisory opinion, she stated that the Veteran had "no attempt to obtain sedentary work," and that "[t]here [were] many jobs in the workplace that require only light activity and minimal social interaction with others." She concluded that, "[t]his decision evaluates whether the Veteran, because of his SC disabilities, is incapable of performing the physical and mental acts required by employment, not whether the Veteran can find employment." Although the Director of Compensation found that Veteran was not unemployable due to his service-connected disabilities, the Board finds that there is sufficient evidence to conclude to the contrary. The Board assigns probative value to the December 2019 psychiatric report, VA treatment and Vet Center records which indicate that, prior to February 7, 2017, the Veteran's general demeanor was restrictive, at best. The Board also assigns probative value to the lay statements provided by the Veteran and his spouse. They provide a picture of how the Veteran navigated through life on a daily basis and the challenges he faced due to his service-connected PTSD. The Veteran had isolated himself and gotten to a point where he could not function socially or occupationally. The Veteran's history of sleep disturbances and its impact on his wakefulness while at work are significant factors in his employability as a train conductor, the only employment he has engaged in for over 30 years. Although the Director of Compensation opined that the Veteran would be able to work a job where there was little to no personal interaction with others, the Board is hard pressed to find a job which the Veteran would be qualified to apply or one that lacked any stresses that could possibly trigger the Veteran's multitude of PTSD symptoms. Here, the December 2019 psychiatric report, VA treatment records, Vet Center records in addition to the lay statements described above weigh in favor of the grant of extraschedular TDIU, while the negative opinion from the Director of Compensation Service weighs against the claim. The Board finds that the cumulative weight of the favorable evidence is equal to the weight of the negative evidence; and resolving doubt in favor of the Veteran, the claim of entitlement to TDIU on an extraschedular is granted. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Based upon the medical records; lay statements the Veteran's employment history, and his level of education, the Board finds that the Veteran is unemployable as a result of his service-connected PTSD. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Baskerville 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.