Citation Nr: 21075925 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 19-05 935A DATE: December 21, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service connected PTSD, from July 1, 2007 to September 29, 2011, is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) from September 29, 2011 to August 27, 2013, is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service connected PTSD, from August 27, 2013, is granted. REMANDED Entitlement to a total disability rating based on individual unemployability due to service connected PTSD from September 29, 2011 to August 27, 2013, is remanded. FINDINGS OF FACT 1. The Veteran's service connected PTSD rendered him unable to obtain or maintain gainful employment from July 1, 2007 to September 29, 2011. 2. The Veteran's service connected disabilities prevented him from securing or following substantially gainful employment from September 29, 2011 to August 27, 2013. 3. The Veteran's service connected PTSD renders him unable to obtain or maintain gainful employment from August 27, 2013. CONCLUSIONS OF LAW 1. The criteria for a TDIU due to PTSD, from July 1, 2007 to September 29, 2011, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. 2. The criteria for a total disability rating based on individual unemployability, from September 29, 2011 to August 27, 2013, have been met. 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.19. 3. The criteria for a TDIU due to PTSD, from August 27, 2013, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from December 1965 to December 1967; and from February 1980 to August 1980, to include service in Vietnam. For his meritorious service, the Veteran was awarded (among other decorations) the Vietnam Service Medal and the Vietnam Campaign Medal with Device. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in May 2017 by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2021, the Veteran appeared for a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Entitlement to a total disability rating based on individual unemployability (TDIU) The Veteran asserts that he is entitled to TDIU due to his service connected disabilities. Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestead v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's level of education, special training and previous work experience in arriving at a conclusion, but not to age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Substantially gainful employment must be reviewed in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. Moore v. Derwinski, 1 Vet. App. 356 (1991), Timmerman v. Weinberger, 510 F.2d 439 (8th Cir. 1975). Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is 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, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Procedurally, the initial rating for a left knee disability was assigned in a September 2015 Rating Decision with an effective date of July 1, 2007. Thereafter, the Veteran filed a January 2016 Application for Increased Compensation Based on Unemployability, in which he asserted his left knee disability (among other service connected disabilities) prevented him from securing or following any substantially gainful occupation. April 2016 and October 2016 Rating Decisions denied the Veteran's claim for TDIU and continued the 10 percent rating for his left knee disability. A May 2017 Rating Decision continued the denial of a TDIU, to which the Veteran perfected an appeal. A March 2019 Statement of the Case and April 2019 Supplemental Statements of the Case continued the denial of a TDIU. In Mayhue v. Shinseki, 24 Vet. App. 273, 281-82 (2011), the Court found that where evidence of unemployability was submitted to VA within one year of the issuance of a rating decision granting benefits on an original claim for service connection, the TDIU request was not a separate claim for an increased rating but rather "evidence that must be considered in the adjudication of the original claim when determining the proper rate of disability compensation." Under this guidance, as the initial rating assigned did not become final at the time of the request for a TDIU, the period for which a TDIU may be granted includes the entire initial rating period (and the general effective date limitations set forth at 38 C.F.R. § 3.400 do not bar a TDIU prior to the specific request for such). For the above reasons, the issue before the Board is whether the Veteran is entitled to a TDIU for the period from July 1, 2007 to the present. 1. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service connected PTSD, from July 1, 2007 to September 29, 2011 From July 1, 2007, the Veteran was service connected for posttraumatic stress disorder (PTSD) with a 70 percent rating; left knee degenerative joint disease with a 10 percent rating; thoracolumbar spine strain with intervertebral disc syndrome (IVDS), degenerative arthritis, and spondylolisthesis of L5 and S1 vertebrae with a 20 percent rating; radiculopathy of the right lower extremity with a 10 percent rating; and radiculopathy of the left lower extremity with a 10 percent rating for a total rating of 80 percent. Thus, the Veteran met the schedular requirements for TDIU from July 1, 2007. During the Veteran's April 2021 hearing, the Veteran testified that the longest job he maintained post-service was from 1987 to 1991 at a hospital as a mental health assistant. He stated that he had to leave the job due to having breakdown caused by his psychiatric symptoms. Since that time, until 2010, the Veteran endured a series of failed attempts to maintain employment. In July 2007, the Veteran submitted a service treatment record from the medical board. The medical board found the Veteran unsuitable for continued service due to his mental state. The Veteran had recently been hospitalized due to anxiety from the belief that further military service would cause pain and suffering to his family. In addition to the severe anxiety, it was noted that the Veteran also had impulses to harm himself, rumination without problem solving, low self-esteem, and depression. VA treatment records from May 2008 to July 2008 report that the Veteran was admitted to the hospital for suicidal ideations and a plan to harm himself. The Veteran reported a recent increase in sensitivities as well as a growing irritability with his family. Triggers were reported as any images or sounds reminiscent of Vietnam, such as seeing a palm tree, a hat with military patches on it, or Asian people. The Veteran also reported severe depression for more than 6 weeks in addition to recurrent flashbacks, nightmares, avoidance, hypervigilance, anger, and irritability. The Board notes that the Veteran has been rated at 70 percent for his PTSD from July 1, 2007 to September 29, 2011. As such, he meets the schedular rating for a TDIU based on his PTSD alone. Due to the severity of the Veteran's PTSD symptoms, the Board finds that the Veteran warrants a TDIU based solely on his service-connected PTSD from July 1, 2007 to September 29, 2011. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) from September 29, 2011 to August 27, 2013 The Veteran underwent a VA examination for his PTSD in September 2011. The Veteran reported symptoms of sleep impairment, increased nightmares, increased impulsivity and irritability. The Veteran stated that he was sensitive to his chronic pain issues. The examiner noted that the Veteran's mood and affect were anxious. The examiner further documented that the Veteran had depersonalization with Asian people and flashbacks occurring 1 to 2 times per month. The Veteran also had symptoms of avoidance, detachment, hypervigilance, and exaggerated startle response with all symptoms causing clinically significant distress or impairment in social and occupational settings. VA treatment records from October 2011 to November 2011 document the Veteran experiencing a worsening in his previously reported symptoms and a desire to isolate himself more. VA treatment records also report that the Veteran was admitted to the psychiatric hospital in April 2012 due to severe PTSD symptoms such as depression and anxiety. A September 2011 VA examination for the Veteran's back confirmed a diagnosis of degenerative disc disease of the lumbar spine and bilateral lumbar radiculopathy. The Veteran reported painful flareups that decrease mobility due to stiffness. These flareups are brought on by overactivity or fatigue and can occur daily. During flareups the Veteran has to cease all activity and lie down. Range of motion was abnormal and there was additional loss of range of motion after repetitive use testing. Excess fatiguability, pain on movement, instability of station, disturbance of locomotion, and interference with sitting, standing and/or weightbearing were noted on the examination. The examiner determined that the Veteran's back disability and radiculopathy impacted his ability to work. The examiner noted that the Veteran had to stop working as a truck driver in 1995 due to severe back and leg pains and that he was also unable to work retail due to being unable to stand for long periods of time. The Veteran also underwent a VA examination for his left knee in September 2011. The examiner confirmed a diagnosis of bilateral knee arthralgias. The Veteran reported painful flareups with overuse. The examiner determined that the Veteran's knee disability impacted his ability to work due to pain from prolonged sitting or standing. For the period beginning September 29, 2011, the Veteran was service connected for PTSD with a 50 percent rating; a back disability with a 20 percent rating; radiculopathy of the right lower extremity with a 10 percent rating; radiculopathy of the left lower extremity with a 10 percent rating; and bilateral hearing loss at a noncompensable rating for a total 70 percent rating. In August 2012, the Veteran was service connected for coronary artery disease, raising his overall rating to 80 percent during this timeframe. Thus, the Veteran met the schedular requirements for a TDIU from September 29, 2011 to August 27, 2013. Based on the competent evidence of record, the Board finds that entitlement to a TDIU is warranted. The evidence of record demonstrates that due to the Veteran's service connected disabilities, the Veteran was unable to maintain an occupation that required prolonged sitting, standing, or interaction with the general public. The Veteran experienced flareups of his lumbar spine almost daily which require him to lie down until the pain subsides; the same is also true for flareups of the left knee. In addition to document severe pain in his lower back, legs, and knee, the Veteran's PTSD symptoms were so severe during this timeframe that hospitalization was required. As such, the Board finds that the Veteran was unable to maintain gainful employment from September 29, 2011 to August 27, 2013, due to his service connected disabilities and entitlement to a TDIU during this timeframe is granted. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service connected PTSD, from August 27, 2013 The Veteran has been rated at 70 percent for his PTSD from August 27, 2013. The Veteran appeared for VA examinations from August 2014 to February 2016 for his posttraumatic stress disorder (PTSD). During this time, VA examiners determined that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgement, thinking, and/or mood. In a December 2018 VA examination, the examiner determined that he had total occupational and social impairment. Symptoms from August 2014 to December 2018 remained largely consistent. The Veteran reported symptoms of depressed mood; anxiety; suspiciousness; panic attacks; near continuous panic or depression; chronic sleep impairment; mild memory loss; flattened affect; impaired judgment; disturbances in motivation and mood; difficulty in establishing and maintaining effective work and social relationships; inability to establish and maintain effective relationships; suicidal ideation; and neglect of personal appearance and hygiene. Other symptoms reported were flashbacks, nightmares, psychological arousal, social isolation, avoidance, and hypervigilance. The Veteran reported that his past triggers were still present. More specifically, he reported that he jumps at loud noises and he has to leave when a person of Asian descent comes into a room. He also reported harming his wife in his sleep. The Veteran also reported that he increasingly isolates himself and is easily frustrated or angry. Moreover, the December 2018 VA examiner noted that due to the Veteran's PTSD symptoms, (such as nightmares, flashbacks, lack of sleep, lack of concentration, anger issues, increased anxiety in crowds and in the presence of loud noises) he would not be able to function in any type of employment. A Rehab Pro Assessment and Consultation memorandum submitted to the VA in October 2018 determined that the Veteran was unemployable due to his PTSD symptoms. Specifically, it was noted that the Veteran had irritable behavior with angry outbursts (with little or no provocation) expressed as verbal or physical aggression toward people or objects. It was also reported that the Veteran had an intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. Here, the evidence above shows that the Veteran has experienced severe PTSD symptoms from August 27, 2013 to the present. Given all these facts, the Board cannot conceive of an employment position that the Veteran could hold with his current symptoms and diagnosis. The criteria for a TDIU based on his PTSD alone are met. Basing the Veteran's TDIU on PTSD solely has the added benefit of rendering the Veteran eligible for special monthly compensation. Indeed, as the Veteran has sufficient additional combined disabilities rated at 60 percent or higher, from August 27, 2013 to February 18, 2015, and from January 27, 2016 to the present, SMC at the housebound rate should be granted as well for these timeframes. REASONS FOR REMAND 1. Entitlement to a total disability rating based on individual unemployability due to service connected PTSD, from September 29, 2011 to August 27, 2013, is remanded. From September 29, 2011 to August 27, 2013, the Veteran's PTSD was evaluated at 50 percent. A TDIU cannot be awarded under 38 C.F.R. § 4.16(a) as he does not meet the schedular criteria. The Veteran may still qualify for an extraschedular TDIU under 38 C.F.R. § 4.16(b), however. Although the Board may not assign an extra-schedular rating in the first instance, it must specifically adjudicate whether to refer a case for extra-schedular evaluation when the issue either is raised by the claimant or reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). The Board must therefore determine whether there is sufficient evidence to warrant referring this case to the Director of the VA Compensation and Pension Service or other appropriate authority for extra-schedular consideration. The competent evidence of record shows the Veteran's PTSD produced symptoms of sleep impairment, increased nightmares, increased impulsivity, increased irritability, depersonalization with Asian people, flashbacks, avoidance, detachment, hypervigilance, and exaggerated startle response with all symptoms causing clinically significant distress or impairment in social and occupational settings. During this timeframe, the Veteran was also hospitalized due to his depression and anxiety. The evidence detailed above provides plausible evidence of unemployability due to PTSD from September 29, 2011 to August 27, 2013, so as to warrant referral to the Director of Compensation Service for consideration of entitlement to a TDIU on an extraschedular basis. Thus, on remand, refer the Veteran's TDIU claim to the Director of Compensation Service for extraschedular consideration of entitlement to a TDIU solely due to PTSD from September 29, 2011 to August 27, 2013, under 38 C.F.R. § 4.16(b). The matters are REMANDED for the following action: 1. Refer the Veteran's TDIU claim to the Director of Compensation Service for extraschedular consideration of entitlement to a TDIU due to PTSD under 38 C.F.R. § 4.16(b) September 29, 2011 to August 27, 2013. A copy of the Director's decision on this claim must be included in the claims file. After completing the above development and any other development deemed necessary, readjudicate the remaining issue on appeal of entitlement to a TDIU due to PTSD from September 29, 2011 to August 27, 2013 on an extraschedular basis. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. K. Hall, 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.