Citation Nr: A21020121 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 210818-179810 DATE: December 16, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to January 10, 2018 is denied. Entitlement to an effective date prior to January 10, 2018 for the award of basic eligibility for Dependents' Educational Assistance (DEA) is denied. FINDINGS OF FACT 1. The Veteran's service-connected disabilities do not render him unable to secure and follow a substantially gainful occupation prior to January 10, 2018. 2. The Veteran became permanently and totally disabled for purposes of basic eligibility to DEA benefits on January 10, 2018. CONCLUSIONS OF LAW 1. The criteria for entitlement to a TDIU prior to January 10, 2018 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.350, 4.16. 2. The criteria for an effective date earlier than January 10, 2018 for the award of basic eligibility to DEA benefits are not met. 38 U.S.C. § 3510; 38 C.F.R. § 3.807. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1967 to July 1970 and in January 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from Department of Veterans Affairs (VA) Regional Office (RO)'s rating decision issued in June 2021; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the August 2021 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. 1. TDIU prior to January 10, 2018. The Veteran contends that he is entitled to TDIU prior to January 10, 2018. The Veteran's VA Form 21-8940 was received on June 25, 2010, in which he stated that he became increasingly anxious due to disrupted sleep and he was too fatigue to be effective. He further reported that he became more agitated by his coworkers and also could not concentrate on his job. He reported he had not worked full time since the end of December 2006. His claim for TDIU was first considered by the Board in October 2017; since the Veteran's combined rating at that point did not meet the schedular requirement for consideration of TDIU, as explained below, the Board referred the claim to the Director of Compensation Service for consideration of TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). In December 2017, the Director determined that extraschedular entitlement to TDIU was not warranted. The appeal for TDIU was returned to the Board in January 2019, and the Board noted the December 2017 denial of the claim by the Director and remanded the issue of TDIU again because the Board granted higher disability ratings for diabetic peripheral neuropathy of bilateral lower extremities in that decision and remanded an intertwined issue of entitlement to a higher rating for diabetes mellitus type II. Subsequent to the January 2019 remand, the Board granted TDIU in an April 2021 decision. The April 2021 rating decision on appeal implemented the grant and assigned an effective date of January 10, 2018, and the Veteran appealed the assignment of the effective date. TDIU may be assigned when a Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16. TDIU is warranted where the combined schedular evaluation for service-connected disabilities is less than total, or 100 percent. 38 C.F.R. § 4.16(a). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded from securing or following a substantially gainful occupation by reason of his or her service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Under38C.F.R. § 4.16 (a), if there is only one such disability, it must be rated at 60 percent or more to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16 (a). It is VA's policy to grant TDIU to any veteran who is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16 (b). Prior to January 10, 2018, the Veteran did not meet the schedular requirement for TDIU. Indeed, the highest combined rating assigned during the appeal period was 60 percent from November 18, 2016 to January 10, 2018, which combined 30 percent for anxiety disorder, 10 percent for diabetic peripheral neuropathy of the right lower extremity, 10 percent for diabetic peripheral neuropathy of the left lower extremity, and 20 percent for diabetes mellitus type II under 38 C.F.R. § 4.25 (with bilateral factors applied to peripheral neuropathy of bilateral lower extremities). Because the Veteran's combined ratings do not meet the minimum requirements in 38 C.F.R. § 4.16 (a) for consideration of a TDIU on a schedular basis, the issue of entitlement to a TDIU may be considered only under 38 C.F.R. § 4.16 (b). The Board cannot consider entitlement to TDIU under 38 C.F.R. § 4.16 (b) in the first instance, but must first remand the claim for referral to VA's Director of Compensation Service if such consideration is warranted. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). As noted above, the Board did so and in December 2017, the VA Director of Compensation Service concluded that an entitlement to a TDIU under 38 C.F.R. § 4.16 (b) was not warranted. She found that the Veteran's anxiety was shown to be of a mild nature that decreased work efficiency and ability to perform occupational tasks only during periods of significant stress and that the Veteran was not shown to be unemployable under any circumstances as sedentary occupational activity had not been ruled out. The Board conducts de novo review of the Director's decision denying extraschedular consideration under 38 C.F.R. § 4.16 (b) and the Director's decision is, in essence, the decision of the AOJ and not evidence. Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015) ("[T]he Director's decision [pursuant to 38 C.F.R. § 4.16 (b) is in essence the de facto decision of the agency of original jurisdiction and, as such, is not evidence"). In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court defined the term "unable to secure and follow a substantially gainful occupation" as having two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of the following: The Veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. The ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; rather, that determination is for the adjudicator. See 38 C.F.R. § 4.16 (a); see also Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The medical evidence addressing the functional effects of a veteran's disability on his ability to perform the mental and/or physical acts required for substantially gainful employment is relevant to the unemployability determination. See 38 C.F.R. § 4.10; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). As explained below, the Board finds that the evidence preponderates against finding that the Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities prior to January 10, 2018, and a TDIU on an extraschedular basis prior to January 10, 2018 is not warranted. The evidence of record shows that the Veteran retired from the federal police force in December 2006 after almost three decades. After retirement, he briefly worked as a car courier. He did not report any education or training after high school. See June 2010 VA Form 21-8940. According to December 2006 Notification of Personnel Action Form, the Veteran voluntarily retired from the federal police force as of January 2007 "[a]t the right age." At an October 2015 Board hearing, the Veteran reported that he retired early at the age of 60 because he could not get along with people and certain situations at work. He testified that he had altercation, road rage, and problems with coworkers, but not with supervisors. Elsewhere, the Veteran has consistently maintained that he is unable to work due to his psychiatric disability. First, the evidence demonstrates that the Veteran's service-connected diabetes and diabetic peripheral neuropathy of bilateral lower extremities did not cause severe physical or mental impairment that could have interfered with employment prior to January 10, 2018. Indeed, the medical evidence of record shows that the Veteran's diabetes was managed by medication and that peripheral neuropathy, which manifested in 2015, was of mild severity during the appeal period. Although a May 2016 diabetes impairment questionnaire completed by his private physician indicates the Veteran's ability to sit and stand or walk continuously for a period of time was diminished due to its diabetic complication, he was able to play golf few times a week and playing cards four days per week. Further, the May 2016 evaluation indicates that he was able to carry or lift up to 20 pounds frequently. No impairment on mental capacity due to diabetes or peripheral neuropathy was reported during the appeal period. Therefore, the issue before the Board is whether the Veteran's service-connected psychiatric disability rendered him unable to perform the mental and/or physical acts required for substantially gainful employment prior to January 10, 2018, as the Veteran contends. Here, the evidence also preponderates against his claim for the following reasons. First, the Veteran is in receipt of 30 percent rating for his anxiety disorder during the appeal period, as found by the Board in the October 2017 decision. The Veteran filed a motion for reconsideration for this decision in November 2018, and the Deputy Vice Chairman of the Board denied the motion in March 2020. The Board notes here, as reference, the rating criteria under Diagnostic Code 9413, which applies the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. Under the Formula, 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment, impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. Second, the evidence of record does not show that the Veteran's service-connected anxiety disorder was productive of physical and mental impairment, rendering him unable to secure and follow a gainful occupation during the appeal period. Objectively, the treatment records for the appeal period indicate that the Veteran's service-connected anxiety disorder did not result in any physical impairment and was productive of symptoms such as sleep impairment, avoidance, hyper-startled response, poor concentration at times, loss of temper, emotional distress, and disturbances of mood and motivation and he did not have any symptoms that mirrored flattened affect, speech disturbances, memory impairment, difficulty understanding complex commands, impaired judgment, impaired abstract thinking, or difficulty in establishing and maintaining effective relationships. As for his symptom of "seeing things that are not there" during his awake times (see, e.g., November 2011 VA treatment record), the evidence of record suggests that it has not caused severe impairment in the Veteran's functioning of daily life to the point of impacting his level of consciousness. Indeed, a September 2012 VA examiner noted that the Veteran's hallucinations are not of psychotic type, but rather they are hypnopompic hallucinations, which are generally considered non-pathological. Non-pathological nature of the Veteran's hallucinations is consistent with what is described in the treatment records by the treating clinicians and private and VA examiners. Subjectively, the Veteran consistently repeated that he stopped working in 2006 because he was unable to handle work situations due to his psychiatric disability. He has reported this to his treating social worker, treating physician at VA, and multiple private examiners throughout the appeal period. The evidence also indicates that the Veteran quit the car courier job due to his inability to work with his co-workers. There is no objective evidence, such as personnel records from a previous employer or witness account describing conflicts between him and his coworkers, to corroborate the Veteran's statements. The Board acknowledges that the Veteran is competent to report reasons for his retirement or resignation from work and the Veteran's statement for the reasons is rendered credible. However, when it is viewed in the entirety of the evidence, what it shows is that the Veteran did have a temper issue, but was able to control his impulse and walk away so as not to cause any actual confrontation, altercation, or violence at workplace and was able to leave the situation voluntarily. The evidence confirms that the Veteran has had this symptom of difficulty in interacting with others in the context of his family and social life after retirement, but he has consistently described how he exercised control and managed the difficulty. The Veteran's impairment of mental capacity does not give rise to the level of total occupational and social impairment. Indeed, the medical evidence of record, to include VA social work notes, VA psychiatry notes, and private psychiatric evaluations during the appeal period, documents no severe impact or incident which resulted from the Veteran's temper or other psychiatric symptoms after the retirement. In addition to the fact that the Veteran's other service-connected disabilities did not impact his employability during the appeal period, the evidence does not show that the Veteran's psychiatric disability was productive of symptoms equivalent, in severity, duration, and frequency, to gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Overall, the Veteran's diabetes and its complication did not result in physical or mental impairment to occupational tasks during the appeal period. Moreover, the level of severity in his psychiatric disability was at worst moderate and the evidence preponderates against finding that his anxiety disorder resulted in severe physical or mental impairment that rendered him unable to obtain or follow a gainful occupation. Simply put, prior to the worsening of his peripheral neuropathy as of January 10, 2018, the Veteran would have been able to obtain and maintain gainful employment even with the diminished psychological capacity. The Board notes that the impairment due to the worsened, severe nature of the Veteran's peripheral neuropathy, documented in a March 2020 VA examination, was a material fact for the award the TDIU in the April 2021 Board decision. As such, a TDIU cannot be awarded for his service-connected disabilities prior to January 10, 2018. 2. Effective date prior to January 10, 2018 for the award of DEA Regarding the earlier effective date for an award of basic eligibility for DEA, Chapter 35 benefits, DEA benefits are payable to the child, spouse, or surviving spouse of a Veteran if the following conditions are met: (1) the Veteran was discharged from service under conditions other than dishonorable, or died in service; and (2) the Veteran has a permanent total service-connected disability; or (3) a permanent total service-connected disability was in existence at the date of the Veteran's death; or (4) the Veteran died as a result of a service-connected disability. 38 U.S.C. § 3510; 38 C.F.R. § 3.807(a), 21.3021. In the June 2021 rating decision, the Veteran was awarded basic eligibility to DEA benefits, effective January 10, 2018, the date which he was found to be entitled to TDIU. (Continued on the next page) There are other avenues through which basic eligibility may be granted. However, they involve factors not applicable here, e.g., the death of a Veteran or if a Veteran is currently on active duty. As eligibility for DEA benefits is predicated on a finding of permanent and total disability in this case and permanent and total disability has been found from January 10, 2018, an effective date earlier than January 10, 2018 is not warranted for entitlement to basic eligibility for DEA benefits. Emily Tamlyn Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. Taylor 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.