Citation Nr: 21076458 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 20-08 317 DATE: December 23, 2021 ORDER A total disability rating based on individual unemployability due to service-connected disabilities (TDIU), to include on an extraschedular basis, from July 27, 2009, to July 9, 2018, is granted. FINDING OF FACT From July 27, 2009, to July 9, 2018, to include the period when the Veteran did not meet the schedular requirements for TDIU, it is reasonably shown that the Veteran's service-connected disabilities precluded him from securing or following substantially gainful employment consistent with his education and occupational experience. CONCLUSION OF LAW From July 27, 2009, to July 9, 2018, the criteria for entitlement to TDIU, to include on an extraschedular basis, due to service-connected disabilities have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16(a), (b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from January 1964 to March 1968, with service in Vietnam from August 1965 to June 1966. The Veteran passed away in May 2019. The appellant is his surviving spouse and has been substituted for the Veteran as the claimant in this matter. This matter was previously before the Board in October 2020 and was remanded for initial consideration by the Agency of Original Jurisdiction (AOJ). The Board notes that VA has recognized the TDIU claim has been pending since July 27, 2009, as part of the Veteran's increased rating claim for posttraumatic stress disorder (PTSD) and entitlement to service connection for a heart disability. See September 2021, VA Memo (Advisory Opinion); August 2021, Administrative Decision (Director of Compensation); August 2009, VA Form 21-8940; July 2009, Third party correspondence. Entitlement to TDIU, to include on an extraschedular basis, from July 27, 2009. In the October 2020 decision remanding the Veteran's TDIU claim, the Board instructed the RO to determine whether referral to the Director, Compensation and Pension Service, was warranted for extra-schedular consideration under 38 C.F.R. § 4.16(b). Before referring the matter of extraschedular TDIU to the Director, the rating agencythe agency of original jurisdiction or the Boardmust first determine whether there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities." Ray v. Wilkie, 31 Vet. App. 58, 66 (2019). The RO subsequently referred this matter to the Director. A total disability rating 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 the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to their age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of their service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system are considered as one disability. Id. Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to TDIU is based on an individual's particular circumstance." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (quoting Thun v. Peake, 22 Vet. App. 111, 116 (2008)); see also Todd, 27 Vet. App. at 85-86. Therefore, in adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering veteran's master's degree in education and his part-time work as a tutor). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to the following: 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 work-place stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). 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). Here, the Veteran's combined total rating was 100 percent as of July 10, 2018, and could not qualify for TDIU; therefore, the Board will only focus on the period from July 27, 2009, to July 9, 2018. From July 27, 2009, to July 9, 2018, the Veteran's service-connected disabilities included: PTSD (50 percent as of July 13, 2007); diabetes mellitus, type II (10 percent as of August 5, 2009, and 20 percent as of July 19, 2010); coronary artery disease with stenting (10 percent as of July 27, 2009); peripheral neuropathy of the right lower extremity associated with diabetes (10 percent as of August 21, 2015); peripheral neuropathy of the left lower extremity associated with diabetes (10 percent as of August 21, 2015); and retinal ischemia associated with coronary artery disease (noncompensable as of August 21, 2015). Considering the service-connected disabilities and assigned ratings from July 27, 2009, to July 9, 2018, the Veteran had a combined service-connected disability rating of 60 percent effective July 27, 2009, and 70 percent effective August 21, 2015. From July 27, 2009, to August 20, 2015, the Veteran's disabilities did not result from a common etiology, affect the same body system, or otherwise meet the criteria to be considered as one disability for TDIU purposes. Thus, although the Veteran had one disability rated at least 50 percent disabling as of July 27, 2009, his other disabilities did not combine to 70 or more percent prior to August 21, 2015. Accordingly, the schedular percentage threshold for a TDIU were not met from July 27, 2009, to August 20, 2015. However, schedular was met from August 21, 2015, to July 9, 2018. See 38C.F.R. § 4.16(a). It is also the established policy of the Department of Veterans Affairs 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. Therefore, rating boards should submit to the Director, 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 standards set forth in paragraph (a) of this section. The rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). The Board is required to obtain the Director's decision before it may award extraschedular TDIU. Wages v. McDonald, 27 Vet. App. 233, 236 (2015). The Board has reviewed the evidence of record and finds that TDIU, to include on an extraschedular basis, due to service-connected disabilities from July 27, 2009, to July 9, 2018, is warranted. The Veteran contended he was unemployable since he had to retire due to PTSD and a heart disorder. He stated that a recent heart attack, increased severity in PTSD symptoms, and side effects from PTSD medication, made it difficult to do his job and he was afraid that he would make a mistake, have an accident, or be fired for insubordination and lose the ability to retire. The record indicates that the Veteran was employed for 35 years as a railroad conductor/engineer prior to retiring on December 29, 2006. During the period on appeal, the Veteran reported psychiatric symptoms of suicidal thoughts, hallucinations, depressed mood, uncontrollable mood swings, panic attacks, hallucinations, flashbacks and intrusive memories, unprovoked irritability and anger, increased compulsive behavior, poor concentration (it took him two hours to write a one-page letter), inability to handle stress, poor memory, disrupted sleep (only slept for four to six hours), difficulty completing tasks, and waves of depression (lasting from 15 minutes to 24 hours). He further reported psychiatric symptoms had not improved since he was first diagnosed and psychiatric medication caused heartburn, nausea, dry mouth, swelling, and sweating. See Correspondences dated December 2006 and July 2014; August 2009, VA Form 21-8940; January 2007, VA treatment record; December 2006, Private treatment record. In September 2021, the Director of Compensation Service determined that entitlement to TDIU on an extraschedular basis, namely from July 27, 2009, to August 20, 2015, was not warranted. The record demonstrates that the Veteran had an eighth-grade education and obtained his GED during service. After discharge from service, he worked as a railroad conductor/engineer for 35 years until he retired in December 2006; he had no other training or education. The Veteran's medications included Sertraline and Lorazepam. The record indicates the Veteran's last full-time employment was on December 29, 2006. See August 2009, VA Form 21-8940; October 2007, VA treatment record. Between July 27, 2009, and July 9, 2018, the medical evidence of record suggests the Veteran suffered severe, uncontrolled psychiatric symptoms as a result of PTSD with alcohol dependence. The Veteran's psychiatric symptoms included visual hallucinations of Vietnamese people; anxiety with foot tapping and leg shaking; increased depression; lack of interest in hobbies; antisocial behaviors; frequent panic attacks (one to three per week) with shortness of breath, accelerated heart rate, and confusion; intrusive thoughts, flashbacks, and nightmares; suicidal ideation; hopelessness; chronic sleep impairment; obsessive compulsive behaviors; poor attention and concentration; poor memory; hypervigilance; unprovoked irritability; and aggressive behaviors. See VA examinations dated September 2007, May 2012, July 2014, and June 2017; July 2007, VA treatment record. Two medical providers, including the Veteran's treating physician, found the Veteran's PTSD and alcohol dependence rendered him unemployable during the appeal period. In July 2007, the veteran's treating physician noted uncontrolled psychiatric symptoms of increased anxiety, mood swings, antisocial behaviors, missed appointments, sleep disturbances, panic attacks, compulsive thoughts, irritability, poor impulse control, alcohol dependence, and social withdrawal. In November 2019, Dr. H.G., interviewed the appellant and reviewed the evidence of record. Dr. H.G. noted the Veteran's diagnosis of PTSD with alcohol dependence, four previous failed marriages, chronic sleep disturbances, habit of self-medicating with alcohol, and behaviors of isolation, memory loss, near-conscious panic or depression, difficulty with adapting to stressful circumstances and establishing relationships throughout the appeal period. She then opined that the Veteran would not have been able to sustain the stress of a competitive work environment due to PTSD and alcohol use disorder as he would not be well rested; could not remember events, requests, or sequencing for tasks; did not trust others; anxiety and panic attacks created a safety hazard; and absenteeism from mood swings and depression. See November 2019, VA examination; July 2007, Correspondence; July 2007, VA treatment record. Medical records also indicated the Veteran should avoid strenuous physical activities due to his heart disability; and pain, weakness, and numbness in his bilateral lower extremities caused by diabetic neuropathies in the lower extremities made walking and physical activities difficult. See VA examinations dated August 2015 and July 2018; VA treatment records dated January 2017, January 2018, May 2018, and July 2018. In light of the above, the Board finds that from July 27, 2009, to July 9, 2018, the Veteran's service-connected disabilities caused functional impairment, and precluded him from securing or following substantially gainful employment in accordance with his education and occupational experience. The medical and lay evidence reflect that the Veteran's service-connected PTSD, coronary artery disease impacted his ability to work, precluded all substantially gainful employment for which he would be qualified based on his educational and occupational history. Indeed, the evidence of record indicated that during the period on appeal, the Veteran had to avoid strenuous physical activities, had painful legs which interfered with his ability to walk, could not handle stress, chronic sleep impairment caused daytime fatigue and difficulty concentrating, had frequent panic attacks, poor memory, could not create or maintain social or work relationships, suffered unprovoked angry outbursts (to include throwing objects), and alcohol dependence exacerbated his psychiatric symptoms. Accordingly, the Board finds TDIU, to include on an extraschedular basis, is warranted from July 27, 2009, to July 9, 2018. Wages; 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.340, 4.16(a), (b). The Board finds than an effective date prior to July 27, 2009, for the grant of TDIU, to include on an extraschedular basis, is not warranted. In reaching this determination, the Board acknowledges that the Veteran had not worked on a full-time basis since December 2006. However, in order to be entitled to an earlier effective date for TDIU, an increase in the veteran's service-connected disability must have occurred during the one-year period prior to the date of the veteran's claim to receive the benefit of an earlier effective date. See Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010) (discussing 38 U.S.C. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2)). Here, prior to July 27, 2009, service connection was in effect only for PTSD. The evidence of record does not indicate PTSD increased in severity during the year prior to July 27, 2009, such that the increase precluded all substantially gainful employment. Indeed, in 2006 and 2007, the Veteran stated that increased PTSD symptoms and prescribed medication forced him to retire early, namely on December 29, 2006. See January 2007, VA treatment record; December 2006, Correspondences. Accordingly, the Board finds that an earlier effective date for TDIU prior to July 27, 2009, is not warranted. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Straughn, Shavonne 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.