Citation Nr: 21005912 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 13-12 162 DATE: February 2, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is granted. FINDING OF FACT Effective August 1, 2007 (for payment purposes), the Veteran’s service-connected disabilities precluded him from securing and following a substantially gainful occupation. CONCLUSION OF LAW 1. The criteria for TDIU on an extraschedular basis have been met from August 1, 2007 to May 11, 2011. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.16. 2. From May 11, 2011, the criteria for a TDIU on a schedular basis have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1990 to June 1993. This matter is before the Board of Veterans’ Appeal (Board) on appeal from an April 2015 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). The Board previously remanded this matter for further development in October 2015, January 2016, and December 2018. The Board’s December 2018 remand requested that the Veteran be provided new VA examinations to assess the severity of his service-connected posttraumatic stress disorder (PTSD) and back disability, and opinions be obtained as to the impact of the Veteran’s PTSD and back disability on his occupational outlook. The Board also requested an opinion as to whether the Veteran’s alleged substance abuse is a biproduct of his PTSD. Finally, the Board requested that the Veteran’s case be referred to the Director of Compensation Service for extraschedular consideration. The examinations and opinions were obtained in February 2020. The case was referred to the Director of Compensation Service in August 2020, and the Director issued an advisory opinion regarding entitlement to a TDIU on an extraschedular basis prior to May 11, 2011. The Board’s December 2018 remand instructions have been substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In a prior decision, the Board determined that the issue of TDIU was reasonably raised by the record. Therefore, the effective date is controlled by the on-going claim and appeal. TDIU 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. A finding of total disability is appropriate “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.” 38 C.F.R. §§ 3.340 (a)(1), 4.15. Total disability ratings for compensation based on individual unemployability (TDIU) 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 a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16 (a). Where these percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service- connected disabilities. 38 C.F.R. § 4.16 (b). The central inquiry is, “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran’s education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The determination of unemployability is to be made by a VA adjudicator and is not a medical question. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The Board is precluded from granting extra-schedular ratings in the first instance, having instead to refer the matter to the Under Secretary for Benefits or the Director of Compensation Services for this initial consideration. See Bowling v. Principi, 15 Vet. App. 1 (2001). Here, the Board can proceed with a decision as the case was sent for an advisory opinion from the Director of Compensation Service in October 2020. See Wages v. McDonald, 27 Vet. App. 233 (2015) (explaining that “the Board is required to obtain the Director’s decision before the Board may award extraschedular TDIU”). The Board now has jurisdiction to consider whether the Veteran is entitled to TDIU on an extraschedular basis. 1. Entitlement to a TDIU prior to May 11, 2011. The Veteran seeks entitlement to a TDIU prior to May 11, 2011. Specifically, he contends he became unable to work due to his service-connected disabilities in August 2007. From July 2006 to January 21, 2011, the Veteran was service connected for post-traumatic stress disorder (PTSD) rated as 30 percent disabling, low back strain first rated as 10 percent disabling then increased to 20 percent disabling in January 2010, and left foot fracture rated as noncompensable. He had periods covered by a temporary total rating which are not at issue in this appeal. The Veteran had a combined rating of 40 percent during this period. From January 21, 2011 through May 11, 2011, the Veteran’s PTSD was rated as 50 percent disabling, low back strain was rated as 20 percent disabling, right lower and left lower extremity radiculopathy were rated as noncompensable, and left foot fracture was rated as noncompensable. The combined rating was 60 percent. Prior to May 11, 2011, no disability was rated at 60 percent or greater. Although his PTSD has been rated as 50 percent disabling since January 21, 2011, his total disability rating before May 11, 2011 was not 70 percent or greater. As such, the Veteran did not meet the schedular requirements for a TDIU before May 11, 2011. He instead seeks a TDIU on an extraschedular basis under 38 C.F.R. § 4.16 (b). After reviewing the record, the Board finds that a TDIU is warranted on an extraschedular basis prior to May 11, 2011. The Veteran filed a VA Form 21-8940 Application for Increased Compensation Based on Unemployability in October 2011. He reported that he had last worked as a CDL driver in June 2007, that he worked 60 hours per week, and that his highest gross earnings were $1600 per month. One year of college was reported. He primarily contended that his service-connected PTSD and back disabilities had rendered him unable to secure or follow substantially gainful employment. The Veteran filed a VA Form 21-8940 Application for Increased Compensation Based on Unemployability in October 2011. He reported that he had last worked as a CDL driver in June 2007, that he worked 60 hours per week, and that his highest gross earnings were $1600 per month. One year of college was reported. He contended that his service-connected PTSD and back disabilities had rendered him unable to secure or follow substantially gainful employment. The Veteran had a VA examination for PTSD in October 2009. He reported that he had been unemployed since 2007 when he had a truck driving job for about two years, but that he had worked minor odd jobs since his previous VA examination in June 2007. He reported that he had left his trucking job when business slowed and that he could not hold onto a job because of his drug use. He also reported difficulties finding jobs due to his history of legal problems, which included theft, forgery, possession of drugs, and probation violations. He was able to complete normal activities of daily living without significant impairment and was fully independent. Regarding occupational impact, the examiner noted that the Veteran’s main problem was his ongoing drug abuse and resultant legal problems. The examiner determined that the Veteran’s PTSD was in partial remission at the time and was not contributing significantly to his occupational problems. The examiner also determined the Veteran was not competent to manage his VA benefits due to very poor judgment in money management and spending the bulk of his money on drugs. He was provided VA examinations for his service-connected foot and back disabilities in March 2010. Regarding occupational impact, the examiner determined that the Veterans’ foot disability caused limited tolerance for prolonged walking and standing, and limited activities such as sports and climbing. The examiner the Veteran’s back disability caused moderate impact on the Veteran’s occupational activities and limited bending and lifting. In an April 2010 statement, the Veteran reported that his back and foot disabilities caused trouble with working and walking, that he walks with a limp due to his foot during the winter, and that his back locks up and he cannot bend or twist. The Veteran had another VA examination for PTSD in January 2011. He reported that he was employed for a three-week period since his last examination in October 2009 and that he had thrown a cup of coffee at his employer and walked off the job. The examiner also noted that being a convicted felon has a significantly negative impact on the Veteran’s ability to find employment. The examiner noted that the Veteran had achieved 15 months of sobriety, and that his primary problems are PTSD-related and accompanied by a major depressive disorder, secondary to PTSD. The examiner stated that there was “little doubt” that significant aspects of the Veteran’s current level of impairment in psychosocial adjustment are resultant from former drug dependence, and that it “seems clear” that the drug dependence developed subsequent to his deployment to a warzone. The examiner determined the Veteran was competent to manage his financial affairs. The examiner concluded that there was reduced reliability and productivity due to PTSD signs and symptoms. We note that this level of impairment coincides with a 50 percent evaluation for PTSD. As noted above, the appeal was sent to the Director of Compensation Service for extraschedular TDIU pursuant to 38 C.F.R. § 4.16 (b). In an October 2020 Advisory Opinion, the Director denied entitlement to TDIU. The Director noted that the Veteran’s claim folder showed that he stated his physical problems affected his employment more than his mental condition and that, while the evidence does support the Veteran would need work that does not require heavy lifting or repetitive bending or stooping due to his back, the evidence also reflects that the Veteran’s legal and substance abuse problems affect his ability to obtain gainful employment. The Director concluded the evidence does not show the Veteran would be unable to obtain or maintain gainful employment due to his service-connected disabilities. The Board reviews the Director’s determination de novo and it does not constitute evidence that must be weighed. See Kuppamala v. McDonald, 27 Vet. App. 447 (2015). As reflected above, the record contains multiple VA examinations relevant to the service-connected disabilities prior to May 11, 2011. While none of these indicates that the Veteran is wholly unable to work solely due to his service-connected disabilities, the examination reports do reflect that he has mental, physical, and exertional limitations due to the combination of service-connected disabilities. The Veteran has consistently stated that physical and mental limitations due to his service-connected disabilities caused a significant impact on his ability to maintain employed. Prior to May 11, 2011, he had stated that his primary problems stemmed from his physical disabilities rather than his PTSD and psychiatric symptoms. The 2010 VA examiners noted that his foot disability caused limited tolerance for prolonged walking and standing and limited his activities, and his back disability caused moderate impact on occupational activities and limited bending and lifting. Although the Veteran’s musculoskeletal disabilities alone may not have prevented him from sedentary work, the Board notes that the Veteran reported one and a half years of college and that his work history suggests he has never worked an entirely sedentary job. Post-service, he primarily worked as a commercial truck driver and an automotive mechanic. While driving trucks is at least partially sedentary, he has reported to have been responsible for loading and unloading the trucks he drove and that his back disability prevented him from doing so. In addition, there is evidence the Veteran’s PTSD and drug abuse, combined with his service-connected musculoskeletal disabilities, caused him to be unable to secure of follow any type of substantially gainful occupation prior to May 11, 2011. VA examiners attributed much of the Veteran’s occupational impairment to his substance abuse prior to May 11, 2011. The medical and lay evidence available prior to this date was contradictory as to whether the Veteran’s substance abuse was related to his service-connected PTSD. The Veteran had consistently reported that he began using drugs after his deployment to the Middle East. The October 2009 examiner concluded the Veteran’s substance abuse was a separate issue from his PTSD and not service connected. The January 2011 examiner stated that there was little doubt that the Veteran’s level of psychological impairment was related to his drug dependence, and that it “seems clear” that the drug dependence developed after deployment to a warzone. In this respect, we refer to the February 2020 VA addendum opinion wherein the examiner determined the Veteran’s substance abuse is at least as likely as not a byproduct of his service-connected PTSD. The examiner explained that the Veteran reported using marijuana on a nearly daily basis as a way to cope with PTSD symptoms and, as such, it is at least as likely as not that his substance abuse is a byproduct (way in which he copes) of his PTSD. Although the February 2020 opinion primarily addresses marijuana dependence rather than the Veteran’s history of cocaine use, the Board notes that the Veteran had reported using marijuana daily at the October 2009 examination. The 2009 and 2011 VA examiners determined much of the Veteran’s impairment was related to substance abuse. The Veteran has consistently reported that he began using drugs shortly after his deployment to cope with his symptoms. The February 2020 addendum opinion attributes his drug use to PTSD, and the January 2011 examiner noted the Veteran’s drug dependence developed following deployment. Given the foregoing, the Board finds that the Veteran’s impairment as due to his drug use prior to May 11, 2011 was related to his service-connected PTSD. Some VA medical and psychiatric examinations of record during the relevant time period suggest that the Veteran’s various occupational limitations due to service-connected disabilities do not preclude all work. He has also reported work attempts. However, it is undisputed in these documents that the Veteran has significant limitations, to include an inability to perform bending and lifting movements and impairment of his ability to walk or stand for extended periods of time. Also noted were significant difficulties related to substance abuse, which has since related to his PTSD. Notable, one VA examiner determined the Veteran’s substance abuse rendered him not competent to manage his finances. Having carefully considered the evidence of record, the Board has determined that a TDIU is warranted on an extraschedular basis prior to May 11, 2011. In reaching this conclusion, the Board notes that there are conflicting conclusions and determinations by VA examiners as to the effects of the service-connected disabilities on occupational functioning and indicate that he could perform sedentary or light duty work. However, it is uncontroverted that the Veteran’s low back and left foot disabilities significantly impacted his ability to perform physical labor prior to May 11, 2011. Regarding PTSD, the January 2011 examiner noted that the Veteran’s symptoms caused significant distress or impairment in occupational functioning and reduced reliability and productivity. His substance abuse was deemed responsible for significant impairment and has since been related to his PTSD. As to sedentary jobs, the Board again notes that the Veteran does not appear to have ever worked a sedentary job. Given the Veteran’s educational and occupational background, and the severity of his PTSD symptoms and related substance abuse, it is unclear exactly what type of sedentary position he would have been qualified to perform. Regarding the effective date, granting a TDIU is considered an award of increased disability compensation for purposes of assigning an effective date. Assignment of effective dates for increased ratings is governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Under 38 U.S.C. § 5110 (a), the effective date of an increase in a veteran’s disability compensation “shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of application therefor.” Section 5110 (b)(3) provides an exception to this general rule: “The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date.” The Court and VA’s General Counsel have interpreted the laws and regulations pertaining to the effective date for an increase as follows: If the increase occurred within one year prior to the claim, the increase is effective as of the date the increase was “factually ascertainable.” If the increase occurred more than one year prior to the claim, the increase is effective the date of the claim. If the increase occurred after the date of the claim, the effective date is the date of increase. 38 U.S.C. § 5110 (b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400 (o)(1)(2); VAOPGCPREC 12-98 (1998). Here, the Veteran fist filed a formal claim for a TDIU in October 2011. He filed another application in January 2015. However, as the Board explained in our prior October 2015 decision, treatment records and examination reports included the Veteran’s reports that he was unemployed in part due to PTSD. This constituted an implied, pending claim for a TDIU made in connection with his service connection claim for PTSD and subsequent appeal for increased rating following the award of service connection pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). As indicated, the controlling date for effective date purposes is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. The Veteran’s informal claim for service connection for PTSD was received by VA on July 7, 2006. Although the claim for a TDIU was implicitly included in his claim for service connection for PTSD, and his subsequent disagreement with the initial rating assigned, the Veteran was working full-time until August 2007. This indicates his service-connected disabilities did not render him unable to secure or follow a substantially gainful occupation before August 2007. We acknowledge that the Veteran attempted to work for three weeks in 2010. However, he was fired after a fight with his boss. This did not amount to a substantially gainful occupation. Thus, we find that the effective date for the award of extraschedular TDIU should be August 1, 2007, the date is was factually ascertainable based on all evidence of record that the Veteran’s service-connected disabilities rendered him unable to obtain or maintain substantially gainful employment. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. There is no basis for an effective date earlier than August 1, 2007. Accordingly, we find that the evidence shows the Veteran’s service-connected disabilities prevented him from securing and following substantially gainful employment consistent with his education and occupational experience from August 1, 2001 to May 11, 2011. Entitlement to a TDIU on an extraschedular basis is therefore warranted for this period. 38 C.F.R. § 4.16 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to a TDIU since May 11, 2011. The Veteran also seeks a TDIU from May 11, 2011. From May 11, 2011 forward, the Veteran’s PTSD has been rated as 50 percent disabling, left lower extremity radiculopathy associated with low back strain rated as 10 percent disabling, right lower extremity radiculopathy associated with low back strain rated as 10 percent disabling, and left foot fracture rated as noncompensable. His low back strain was rated as 20 percent disabling until October 22, 2012, when the rating was reduced to 10 percent. From May 11, 2011 forward, the Veteran had one disability rated at least 40 percent or more and a combined rating of 70 percent. The reduction of his low back strain rating did not reduce his overall level of compensation. He therefore satisfies the schedular requirement for consideration of TDIU from May 11, 2011 forward.   He was afforded VA examinations for his musculoskeletal disabilities in October 2012. Regarding his foot disability, the Veteran reported that prolonged standing was an issue at his last job as a mechanic in 2010 and that he could stand for 45 minutes before needing a break. On days without pain walking was unlimited, and with pain he could walk about a quarter of a block before needing to rest. The examiner determined the Veteran’s foot would not hinder employment as a driver or mechanic, but he would need to be able to take frequent breaks during periods of increased pain. Sedentary work would be possible but may require retraining for the Veteran. Regarding his low back disability, the Veteran reported that he had difficulty as a truck driver with heavy lifting when loading and unloading the truck. Walking was limited to 10 feet on bad day and half a block on good day. He reported standing limited to 2 to 3 minutes on bad day, 30-45 minutes on good. The examiner noted that the Veteran’s back did impact his ability to work and the Veteran had to limit lifting and take frequent breaks to rest his back. The examiner concluded that his low back condition would not preclude him from working. He would need work that did not involve repetitive heavy lifting, bending, or stooping. Heavy manual labor would not be advisable. However, sedentary work is possible as is light to medium labor that did not require repetitive lifting, bending, stooping, or carrying and would allow for frequent breaks. He was also afforded a VA examination for PTSD in October 2012. The examiner determined it is less likely than not that the Veteran is unable to secure and maintain gainful employment. He last worked in 2010 and reported that his supervisor would speak Arabic every morning to taunt him, and after working there for 3 weeks the Veteran threw his breakfast at the man and was fired. Prior to that he worked from 2005 to 2007 as a local truck driver but quit because he had difficulty loading and unloading the trucks due to back pain, and because he felt “confined.” He worked as a truck driver from 1998 to 2002 but took jobs that paid poorly then would quit or not show up and be fired. He changed oil from 1993 to 1998 until getting his CDL. The Veteran remained independent in activities of daily living and takes care of the family home as his elderly mother is unable to do so herself. He was afforded another VA examination for his low back in March 2015. He reported low back pain with prolonged sitting, standing and walking. The examiner determined the Veteran’s low back disability does not impact his ability to work. The examiner did note that flare-ups result in pain and as such the Veteran is unable to lift heavy objects or engage in prolonged standing or walking. The examiner noted that the Veteran could walk, stand, and lift as tolerated during a normal workday. The Board previously denied entitlement to a TDIU in a July 2017 decision. The Veteran appealed to the United States Court of Appeals for Veterans Claims (the Court). In June 2018, the Court vacated the Board’s July 2017 decision pursuant to a Joint Motion for Remand filed by representatives for both parties. The Board remanded the claim in December 2018 for action consistent with the parties’ Joint Motion. Specifically, the Board remanded to provide new VA examinations and TDIU opinions for the Veteran’s PTSD and low back disability, and to obtain an opinion as to whether the Veteran’s substance abuse is a biproduct of his PTSD. At the February 2020 examination for his back, the Veteran reported that he cannot lift more than 20 pounds and that he has pain with walking and standing for long periods of time. He also reported occasional stiffness that required help getting out of bed, and that he had daily radiculopathy tingling and pain in both legs. Regarding unemployability, the examiner determined the Veteran could perform light work. At the February 2020 PTSD examination, the examiner diagnosed PTSD and a cannabis use disorder. The Veteran’s symptoms included depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, flat affect, disturbances of motivation and mood, difficulty establishing and maintaining effective work relationships, and difficulty in adapting to stressful circumstances, including work or a work-like setting. The examiner determined the Veteran had occupational and social impairment with deficiencies in most areas. The Board notes this coincides with a 70 percent rating under the General Rating Formula for Mental Disorders. Regarding unemployability, the examiner noted that his PTSD symptoms caused the Veteran difficulty maintaining concentration and focus on work over a period of time, intrusive thoughts which interfere with the ability to stay focused on the task at hand, significant difficulty functioning around other people, disrupted sleep causing fatigue at work and making concentration and focus difficult, depression causing difficulty sustaining energy and motivation, and other mental health problems that interfere significantly with the ability to work. The February 2020 examiner also concluded that the Veteran’s current cannabis use disorder was at least as likely as not due to or the result of his service-connected PTSD, explaining that he reported using marijuana on a nearly daily basis as a way to cope with his PTSD symptoms, and that his substance abuse is a byproduct of his PTSD. A review of the medical evidence and lay evidence indicates that the Veteran’s service-connected disabilities do render him unable to obtain and retain substantially gainful employment. VA examiners have routinely opined that the Veteran’s low back, foot, and radiculopathy disabilities would not preclude light duty work. However, the examiners also noted that the Veteran could not sit or stand for extended periods of time and would have to take frequent breaks throughout a typical workday. In combination, the Veteran’s service-connected physical disabilities have a significant impact on his ability to perform work that requires extended, repetitive periods of sitting, standing, walking, or lifting. VA examiners have also indicated that the Veteran’s service-connected disabilities did not preclude sedentary work. However, the Board has considered the Veteran’s level of education and employment history. He reported one and a half years of college many years ago, and his work history shows that he has primarily worked physically demanding labor jobs. Given the Veteran’s post-service education and work history, the Board is unsure exactly what sedentary position would be available to the Veteran that would provide the limited walking, standing, lifting, sitting, and bending that his service-connected physical disabilities would require. The Veteran’s PTSD and associated symptoms appear to cause the greatest impact on his ability to find and maintain substantially gainful employment. In this regard, we refer to the February 2020 VA examination and opinion wherein the Veteran reported severely worsening symptoms. He only slept three to four hours per night with chronic nightmares. He felt irritable, on-edge, angry, and depressed. He reported using marijuana on a near-daily basis to “get away from everything” and reported a suicide attempt 6 years prior. He also described being highly suspicious and paranoid of his surroundings and seeing shadows from under his door. The February 2020 examiner also attributed the Veteran’s cannabis use to his PTSD. We observe that it would be very difficult for the Veteran to obtain and maintain employment given his worsening PTSD symptoms and daily marijuana use. The February 2020 examiner agreed, noting that his psychiatric symptoms interfered significantly with his ability to work. In sum, the Veteran’s service-connected low back strain, bilateral lower extremity radiculopathy, and left foot fractures significantly limit his ability to walk, stand, sit, bend, and lift weight. The Veteran’s provided work history does not contain obvious sedentary positions; he appears to have worked as an automotive mechanic and commercial truck driver since being discharged from service and has not worked at all since 2010. Moreover, the Veteran’s PTSD and related substance abuse disorder causes significant impact on his ability to work. We also note that the positions the Veteran has worked have historically lasted for short periods and have been low paying. His job in 2010 reportedly lasted three weeks and ended when he got into a fight with his boss. As noted in the February 2020 examination report, the Veteran’s PTSD causes irritability, anger, and difficulties establishing and maintaining effective work relationships. In light of the foregoing, the Board finds that the Veteran’s physical limitations from his service-connected back and foot disabilities in combination with his   psychiatric limitations from his PTSD and substance abuse disorder render him unable to obtain and retain substantial and gainful employment. Accordingly, the Board concludes that entitlement to a TDIU is warranted on a schedular basis from May 11, 2011, and the Veteran’s claim is therefore granted. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Morse 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.