Citation Nr: 21073889 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 16-15 393A DATE: December 13, 2021 ORDER A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) on an extraschedular basis is granted. FINDING OF FACT It is reasonably shown that the Veteran's service-connected acquired psychiatric disorder with PTSD precludes him from securing or following a substantially gainful occupation from February 26, 2010. CONCLUSION OF LAW The criteria for a TDIU as of February 26, 2010, on an extraschedular basis, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 1979 to February 1986. He subsequently served in the Louisiana Army National Guard from March 1986 to March 1988. The Board remanded this matter in March 2020, October 2020, April 2021, and August 2021 for further development. 1. Entitlement to a TDIU. It is the established policy of the 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. A total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Entitlement to a TDIU is based on an individual's particular circumstances. 38 C.F.R. § 4.16; Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). Thus, in adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history, but not his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also, Todd, 27 Vet. App. at 85-86. The ultimate question of whether a Veteran is capable of substantial gainful employment is an adjudicatory determination, not a medical one. See, Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person 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 service-connected disabilities, provided that one of those disabilities is ratable at 40 percent or more, and there is sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: The veteran's history, education, skill, and training; Whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). VA received a claim for service connection for posttraumatic stress disorder (PTSD) on February 26, 2010. During the pendency of that claim, VA received a VA Form 21-8940 Veterans Application for Increased Compensation Based on Unemployability. At all times relevant to this appeal, the Veteran has been service-connected for acquired psychiatric disorder with PTSD at 50 percent disabling. As the Veteran does not meet the schedular requirements for a TDIU this matter was remanded by the Board in April 2021 to refer to the Director, Compensation Service, for extraschedular consideration. In the April 2021 remand, the Board indicated that it found that the evidence suggested that the Veteran's service-connected psychiatric disability may have rendered him unemployable and that referral of this claim on an extraschedular basis to the Director, Compensation Service is warranted. See Bowling v. Principi, 15 Vet. App. 1 (2001); see also Wages v. McDonald, 27 Vet. App. 233 (2015). In reaching this determination, in the April 2021 remand, the Board cited the examiner's assessment regarding the Veteran's employability as set forth in the January 2021 VA psychiatric examination report, stating The veteran reported that he experiences anxiety most days and frequent depressed mood. He noted that this causes impaired motivation to engage in tasks as well as an inability to maintain attention and concentration. These symptoms may cause problems in a work environment that required him to engage in tasks requiring sustained attention or to engage in tasks that require an ability to follow complex commands or engage in novel activities. The veteran also reported poor memory which could significantly interfere with his ability to follow direction and complete occupational tasks in an efficient and complete manner. Moreover, the veteran noted that when presented with a problem in routine activities he becomes easily frustrated which causes him to fail to complete his tasks and requires him to walk away "for a little while." He noted this is also how he handles interpersonal disagreements. This behavior in an occupational setting may impair his ability to deal effectively with co-workers, supervisors, and may impair his ability to manage stress that arises from routine complications inherent in any occupational setting. (Emphasis added by the Board). In compliance with the Board's April 2021 and August 2021 remand instructions, in a September 2021 memorandum that extensively detailed the pertinent evidence of record, RO recommended that the Director award the Veteran a TDIU on an extraschedular basis. For the reasons set forth below, the Board agrees with the RO. In an October 2021 memorandum, the Executive Director of the Compensation Service recommended against a TDIU on an extraschedular basis, finding that the overall evidence fails to support the contention that the Veteran's service-connected condition alone precludes employment. The evidence of record shows that the Veteran has a high school education, no training beyond high school other than his military training and has a work history consisting of driving a garbage truck, driving for Air Liquid, working security at a casino, and driving a bus. The Veteran last worked in 2006. A July 2012 VA treatment record notes testing indicates the Veteran has dysthymic disorder that "can significantly impair an individual's functioning." It was noted that there were "indications that the Veteran has a significant amount of anxiety." A January 2013 VA treatment record notes the Veteran's baseline is always flat with depressed mood. The Veteran reported "always being fearful when walking on the street or being out in public because he does not want to be in trouble." A July 2020 VA examination report notes the Veteran has depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbance of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances, including work or a work like setting. A January 2021 VA examination report notes the Veteran reported he is anxious and feels like he has to "watch his back." He further reported chronic suicidal ideation during periods of depression but denied plan or intent. He also reported difficulty interacting with others but stated that his medication helped him with irritability. Noted symptoms were depressed mood, anxiety, suspiciousness, mild memory loss, disturbance of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work like setting, and suicidal ideation. He reported experiencing anxiety most days and is frequently depressed. The examiner noted that his symptoms may cause problems in a work environment that require him to engage in tasks requiring sustained attention or to engage in tasks that require an ability to follow complex commands or engage in novel activities. The examiner also noted that the manner in which the Veteran handles interpersonal disagreement may impair his ability to deal effectively with co-workers, supervisors, and may impair his ability to manage stress that arises from routine complications inherent in any occupational setting. A June 2021 VA examination report notes the Veteran has a documented history of reporting mood and anxiety symptoms consistent with his most recent evaluation. The veteran reported anxiety, depressed mood, mild deficits in memory, concentration, and attention. He also reported irritability and mistrust of others. During periods of increased depression, he noted low motivation and energy. These symptoms could cause mild impairments in an occupational setting. Specifically, he may have difficulty navigating interpersonal relationships and working effectively as a member of a team. He may also exhibit some inefficiency in task completion, especially with complex or novel tasks, due to mood disturbance and/or diminished attention and concentration. Based on the above, the Board finds that the Veteran has been unable to secure and maintain substantially gainful employment due to the effects of his service-connected acquired psychiatric disorder with PTSD. The evidence shows that his symptoms cause him to react to stress, particularly interpersonal conflict, in such a manner that it is not reasonable that he would be able to maintain, let alone gain, any substantially gainful employment. (Continued on the next page) In light of the evidence, the Board finds that the Veteran is unemployable due to his service-connected acquired psychiatric disability. As such, the Board finds that the evidence supports a grant of TDIU on an extraschedular basis as of February 26, 2020, the date of service connection for that disability. Geib; see also Wages. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Keeley, Brian 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.