Citation Nr: 21075311 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 10-31 330 DATE: December 20, 2021 ORDER Effective from June 6, 2008, to June 23, 2010, entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis is granted. FINDING OF FACT From June 6, 2008, to June 23, 2010, the Veteran's service-connected disabilities have prevented him from securing or following a substantially gainful occupation. CONCLUSION OF LAW Effective from June 6, 2008, the criteria for entitlement to TDIU on an extraschedular basis have been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1966 to August 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. This matter was previously before the Board in January 2014, June 2016, and July 2017, where it was remanded for additional development. Following the remand, in an October 2019 decision, the Board granted TDIU from June 24, 2010, to July 18, 2016. In November 2020, the Veteran and the Secretary of VA filed a Joint Motion for Remand (Joint Motion) with the United States Court of Appeals for Veterans Claims (Court). A November 2020 Order of the Court remanded the issue to the extent that the Board did not consider or discuss whether the Veteran was entitled to TDIU prior to June 24, 2010. In April 2013, the Veteran testified at a hearing at the RO before a Veterans Law Judge (VLJ). A transcript of this hearing is associated with the claims file. The VLJ is no longer employed by the Board. In Legacy appeals such as this one, VLJs who conduct hearings must participate in making the final determination of the claim on appeal. 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. In a May 2021 letter, the Board notified the Veteran that the VLJ was no longer employed by the Board and that he had the right to another hearing. In June 2021, the Veteran responded that another hearing was not desired. This case returned before the Board following the Court's Joint Motion in July 2021. It was subsequently remanded in order to refer the issue of entitlement of a TDIU on an extraschedular basis to the Director, Compensation Services. A copy of the Director's decision has been associated with the claims file. Entitlement to a TDIU on an extraschedular basis for the period prior to June 24, 2010. In this post-remand case, the Veteran contends he is unable to work due to his service-connected PTSD. For the period on appeal, prior to June 24, 2010, service connection currently is in effect for PTSD, evaluated as 30 percent disabling effective June 6, 2008, and for erectile dysfunction associated with PTSD, evaluated as noncompensable effective February 3, 2010. 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. 38 C.F.R. § 4.16(b). A TDIU 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. 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 such 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). For the purpose of determining whether there is one disability evaluated at 60 percent, or one disability evaluated at 40 percent where the combined rating of all service-connected disabilities is 70 percent or greater, disabilities resulting from a common etiology will be considered as "one disability." The Board notes that prior to June 24, 2010, the Veteran does not meet the schedular criteria for a TDIU. From June 6, 2008, to June 24, 2010, the Veteran was in receipt of a 30 percent rating. From June 24, 2010, the Veteran was in receipt of a 70 percent rating. In a February 2017 rating decision, the Veteran was assigned a 100 percent rating for his service-connected post-traumatic stress disorder effective July 18, 2016. For the period where the Veteran did not meet the 100 percent criteria, a TDIU was granted by the Board in an October 2019 effective June 24, 2010. However, where these percentage requirements are not met, as is the case here prior to June 24, 2010, entitlement to benefits on an extraschedular basis may be considered when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular TDIU in the first instance. See Bowling v. Principi, 15 Vet. App. 1 (2001). Per the Board's July 2021 remand directives, the Veteran's claim was referred to the Director of Compensation Services (Director) for extraschedular consideration. A memorandum dated April 2021 is included in the record as to whether the Veteran is entitled to a TDIU on an extraschedular basis. Since the Director has provided a determination as to whether entitlement on an extraschedular basis is warranted, the Board now has jurisdiction to decide the issue. Wages v. McDonald, 27 Vet. App. 233 (2015) (the Board is required to obtain the Director's decision before extraschedular TDIU may be awarded"). In the August 2021 memorandum, the Director determined the overall evidence fails to support the contention that the Veteran's service-connected disabilities or a combination of the effects of those disabilities prevented employment. Ultimately, the Director recommended the Veteran not be granted entitlement to a TDIU on an extraschedular basis. In addition, an Advisory Opinion was provided in September 2021. It stated noted that the Veteran's VA Form 21-8940 received in 2014, shows no attempt to obtain sedentary work. After considering lay statements, the opinion afforded greater weight to the objective medical evidence of record. In conclusion, the opinion found that there is no medical evidence of inability to perform sedentary employment due to service-connected conditions prior to June 24, 2010. However, the Board notes the Director's opinions are not considered evidence and is not necessarily afforded significant probative value. Id. (a decision of TDIU under 38 C.F.R. § 4.16(b) by the Director is not evidence, and is not a policy decision, but is simply a decision or adjudication adopted by the RO and reviewed de novo by the Board). Here, the Board does not afford the Director's opinion significant probative weight. Unlike the criteria for an extraschedular rating under 38 C.F.R. § 3.321, the grant of an extraschedular rating for TDIU under 38 C.F.R. § 4.16(b) is based on a subjective standard to determine if a veteran is precluded from employment based on his service-connected disabilities. See VAOPGCPREC 6-96 (1996). In this regard, the Veteran last worked in 1993 as a railroad trackman and became too disabled to work in 1999. He was employed by the railroad for 23 years, during which he was fired five times and was frequently suspended for insubordination and other various infractions. The Veteran completed the 11th grade of high school and does not possess a diploma or GED, nor does he have any additional training. A June 2010 VA examination reflects that the Veteran has worked as a seasonal bell ringer and on and off as a janitor. In a November 2008 VA examination to assess the Veteran's psychological disorders, the examiner stated that the Veteran is successfully maintaining a work-like activity at this time, and reports improvements in the one significant relationship he reports to have. The Veteran reported hearing voices that told him "life is not worth going on." The voices will tell him to retaliate against others who are doing things to him and he reported to have acted on these commands. He responds to these voices by using drugs and alcohol. The examiner noted the Veteran to be of low normal intellect. It is further noted that the Veteran was hospitalized from September 2, 2008, to November 17, 2008, due to his psychiatric symptoms, homelessness, and drug addiction. In a June 2010 VA PTSD examination, the examiner similarly concluded the Veteran's social functioning and occupational impairments were impacted by his PTSD symptoms, such as auditory hallucinations and verbal altercations with supervisors; however, the Veteran had the capacity to manage his own financial affairs. Vocational rehab and work therapy records from April 2012 reveal the Veteran was capable of competitive employment and was not too disabled to work; with specific notation in December 2011 that the Veteran stated that he doesn't feel any of his mental health diagnoses will impact his ability to work. In a May 2012 VA PTSD examination, the examiner noted the Veteran has occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The examiner added that the Veteran has functional impairment as a result of his PTSD, of a moderate to severe severity level; and occupationally, the Veteran's quick temper and social discomfort make it challenging for him to sustain employment. The examiner noted that the Veteran reported experiencing auditory and visual hallucinations. He also experiences persistent anxiety, weekly panic attacks, and paranoia. Therefore, based on this, the examiner concluded that the Veteran would be capable of working in an environment with minimal social interaction. In addition, records from the Social Security Administration indicate the Veteran's earnings from all sources between 2008 and 2010 to not exceed $4,000 yearly. This figure is clearly below the federal poverty line. Accordingly, taking into account the Veteran's limited education and training, his employment history, the severity of his service-connected PTSD, and his limited income, and affording the benefit of the doubt to the Veteran, the Board finds that the Veteran has been unable to secure or follow a substantially gainful occupation as a result of the service-connected disabilities since June 6, 2008. With all doubt resolved in favor of the Veteran, the Board finds that the evidence supports an award of TDIU on an extraschedular basis from the date of June 6, 2008. 38 U.S.C. § 5107. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. DeBoer, 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.