Citation Nr: 21074131 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 08-25 702 DATE: December 14, 2021 ORDER A total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) prior to April 5, 2012 is denied. FINDING OF FACT The probative evidence of record does not support a finding that the Veteran's various service-connected conditions rendered him unable to obtain or maintain substantially gainful employment prior to April 5, 2012. CONCLUSION OF LAW Prior to April 5, 2012, the criteria have not been met for a TDIU rating on either a schedular or extraschedular basis. 38 U.S.C. §§ 1155, 5103(a), 5107(b); 38 C.F.R. §§ 3.341, 4.16, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1970 to November 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from December 2008 and September 2009 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). This matter has been before the Board and remanded for additional development several times. Most recently, the Board remanded this matter in July 2021 to refer the application for a TDIU to the Director of Compensation Service. Entitlement to a TDIU prior to April 5, 2012 is remanded. Legal Criteria It is the established policy of VA that all Veterans who are unable to obtain and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. It is the established policy of VA that all veterans who are unable to obtain and maintain substantially gainful employment because of service-connected disabilities shall be rated as totally disabled. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.16, 3.340. The term "substantially gainful occupation" is not defined in the rating schedule. Rather, the Court in Ray v. Wilkie, found the phrase has two components: an economic one and a noneconomic one. Ray, 31 Vet. App. 58 (2019). In assessing the Veteran's ability to obtain and follow a substantially gainful occupation, the Board is to consider the Veteran's history, education, skill, and training as well as physical abilities and mental abilities required by the occupation at issue. Id. Such specific physical ability factors include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. Id. Specific mental ability factors include memory, concentration, ability to adapt to change, handle workplace stress, getting along with coworkers, and demonstrating reliability and productivity. Id. The central inquiry is whether the Veteran's service-connected disabilities alone are severe enough to cause unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). VA must consider the veteran's level of education, special training, and previous work experience, but may not consider age or the effect of nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. A schedular TDIU rating may be assigned when the unemployable veteran has (1) a single service-connected disability rated at 60 percent or more; or (if there are two or more service-connected disabilities), (2) one disability rated at 40 percent or more, and the additional service-connected disabilities bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If these percentage criteria are not met but a veteran is, nevertheless, unemployable because of a service-connected disability or disabilities, then an extraschedular TDIU rating must be assigned. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.16(b) ("[A]ll veterans who are unable to obtain and maintain a substantially gainful occupation because of service-connected disabilities shall be rated as totally disabled.") (emphasis added.) Eligibility Prior to April 5, 2012, the Veteran did not meet the schedular criteria for a TDIU rating until May 22, 2008. From August 27, 2007 to May 21, 2008, the Veteran was service connected for posttraumatic stress disorder (PTSD) rated at 50 percent, and hypertension rated at noncompensable. From May 22, 2008 to April 4, 2012, the Veteran was eligible for TDIU on a schedular basis, but the facts, discussed below, do not warrant assignment of a TDIU. Specifically, the Veteran had an overall rating of 70 percent and was service connected for PTSD rated at 50 percent, obstructive sleep apnea rated at 30 percent, gastroesophageal reflux disease (GERD) rated at 10 percent, hypertension rated at noncompensable, and erectile dysfunction rated at noncompensable. As indicated above, the Board remanded this matter in July 2021 to refer this matter to the Director of Compensation Service to determine eligibility on an extraschedular basis. In September 2021, the Director issued an advisory opinion finding that an extraschedular rating was not warranted. The Board is not bound by this decision and will conduct its own de novo analysis. Ray v. Wilkie, 31 Vet. App. 58, 63 (2019) (citing Wages v. McDonald, 27 Vet. App. 233, 238 (2015)). Factual Background The Veteran indicated on his TDIU application that he worked as a computer analyst from 1994 to 2000 and then as a screener for the Transportation Security Administration (TSA) from 2000 to 2004. The Veteran indicated that his service-connected PTSD prevented him from securing or following any substantially gainful employment. The Veteran has an associate's degree. See June 2005 record. On a May 2008 psychological report, the Veteran reported symptoms of hypervigilance, avoiding behavior, sleep disturbance, irritability, anger, flashbacks, and intense distress on cues that remind him of past trauma. The Veteran also reported that he was depressed with symptoms including irritability, decreased motivation to activity, decreased motivation to maintain hygiene and appearance, social withdrawal, and sleep disturbance. The Veteran exhibited no evidence of thought disorder and there was no looseness of association, circumstantiality, or tangentiality. On a January 2009 private mental capacity assessment, the Veteran was noted to have marked or serious limitation in the ability to remember locations and work-like procedures, and the ability to understand and remember detailed instructions. The Veteran was noted to have marked or serious limitation in the ability to maintain attention and concentration for extended periods and the ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances. The Veteran was noted to have marked or serious limitation in the ability to make simple work-related decisions and the ability to complete a normal workweek without interruptions from psychologically based symptoms. On his August 2009 VA examination, the examiner noted that the Veteran's PTSD symptoms were mildly impairing on his occupational life. The examiner noted that the Veteran worked as a security agent and that he worked with a lot of ex-military people. The examiner noted that the Veteran found it difficult to work with the ex-military people and it caused anxiety and anger because they often talked about war. The examiner expressed that it is estimated that those feelings caused occasional decreases in the Veteran's work efficiency or intermittent brief periods of inability to perform occupational tasks. The Veteran reported at the examination that he was involved in a motor vehicle accident which injured his back in 2004. The Veteran further reported that he had difficulty performing his job duties after that and he was missing a significant amount of time from work. The Veteran explained that he could not perform the job duties physically any longer and so he resigned in 2004 after his back injury. Regarding how his PTSD symptoms impacted his work, the Veteran indicated that he worked with a lot of ex-military at the TSA, and they would talk about war which caused him to feel anxious and angry. The Veteran explained that he did not want to spend time with ex-military. In its August 2021 decision review, the Director indicated that the evidence does not demonstrate that the Veteran's service-connected obstructive sleep apnea, gastroesophageal reflux disease, hypertension, or erectile dysfunction had any impact on the Veteran's ability to be employed prior to April 5, 2012. The Director noted that there is conflicting information regarding the severity of the PTSD prior to April 5, 2012. In the January 2009 mental capacity assessment, it was reported that the Veteran had marked or serious limitation in the ability to remember detailed instructions. Additionally, the Veteran was noted to have marked or serious limitation in the ability to maintain attention and concentration for extended periods and the ability to perform activities within a schedule, maintain regular attendance, and be punctual with customary tolerances. The Veteran was noted to have marked or serious limitation in the ability to make simply work-related decisions and the ability to complete a normal workweek without interruptions from psychologically. However, at the August 2009 VA examination, it was noted that the severity of the PTSD was only mildly impairing in occupational life. The Director also noted that the Veteran indicated on his TDIU application that his PTSD was the disability preventing him from securing a gainful occupation, but he otherwise reported at the June and August 2009 VA examinations that he left his job due to a motor vehicle accident in 2004. The Director indicated that the Veteran has multiple years of college education, thus there is an aptitude shown to be able to learn new skills. The Director noted that the evidence shows that the Veteran may by limited in performing duties associated with a certain position. The Director determined the overall evidence fails to support the contention that any of the service-connected disabilities or a combination of the effects of those disabilities support an exceptional situation that prevented gainful employment. See September 2021 memo. Analysis The Board finds that the preponderance of the evidence is against a finding that the Veteran's service-connected disabilities would prevent him from gaining or sustaining substantially gainful employment. While the Board acknowledges that the January 2009 medical examination indicated that the Veteran had marked or serious limitation in the ability to make simple work-related decisions and the ability to complete a normal workweek without interruptions from psychologically based symptoms, the Veteran was able to sustain gainful employment up until he was involved in a motor vehicle accident in 2004. Although the Veteran reported at the August 2009 VA examination that his PTSD was triggered by coworkers talking about war, the Veteran was able to maintain employment for the TSA until the car accident rendered him physically unable to do so. As such, the Board finds that the evidence is more consistent with the findings of the August 2009 VA examiner who opined that the Veteran's PTSD symptoms were only mildly impairing on his occupational life at that time. Given that the Veteran was able to maintain employment up until the point he was injured in the car accident notwithstanding the combined effects of his service-connected PTSD, obstructive sleep apnea, gastroesophageal reflux disease, hypertension, and erectile dysfunction, and given his educational and employment experience, the Board finds that the Veteran's service-connected disabilities did not render him unemployable prior to April 5, 2012. (Continued on the next page) As such, a TDIU rating on either a schedular or extraschedular basis is denied. David Gratz Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Alexander Bahus 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.