Citation Nr: 21007922 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 14-29 214 DATE: February 11, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis is granted from June 22, 2011. FINDING OF FACT The Veteran’s service-connected posttraumatic stress disorder (PTSD) with depression has rendered him unable to secure or follow a substantially gainful occupation throughout the appeal period. CONCLUSION OF LAW The criteria for an extraschedular TDIU are met from June 22, 2011. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from November 1971 to October 1975. He also had a subsequent period of service in the Navy from August 1981 to February 1986, which was terminated by a bad conduct discharge. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2018, the Veteran testified before the undersigned Veterans Law Judge. The Board remanded the claim for further development in June 2018 and October 2019. The Board notes that following a November 2020 Supplemental Statement of the Case, additional VA treatment records were associated with the file. However, as such evidence is either duplicative or irrelevant to his claim of entitlement to a TDIU, there is no prejudice to him in the Board proceeding with a decision at the present time, and in any event, adjudication of the TDIU claim is fully favorable. 1. Entitlement to a TDIU on an extraschedular basis is granted from June 22, 2011. A total disability rating may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16. Here, the Board notes that the Veteran does not meet the schedular criteria for a TDIU throughout the appeal period beginning June 22, 2011, as he is only service connected for PTSD with depression, rated at 50 percent from June 22, 2011. 38 C.F.R. § 4.16(a). Even when the criteria under 38 C.F.R. § 4.16(a) are not met, such as here, entitlement to individual unemployability 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 Board does not have the authority to assign an extraschedular TDIU in the first instance without initially referring the claim to VA’s Director of Compensation Service. Bowling v. Principi, 15 Vet. App. 1 (2001). Such action was accomplished pursuant to the Board’s most recent remand. In November 2020, VA’s Director of Compensation Service determined that the Veteran was not entitled to TDIU on an extraschedular basis. As the Director has considered the issue in the first instance, the Board may now evaluate the claim. Wages v. McDonald, 27 Vet. App. 233 (2015). The determination as to whether a veteran can secure or follow a substantially gainful occupation includes an economic component and a noneconomic component. The economic component means that a veteran must not receive income from employment outside of a protected environment that exceeds the poverty threshold for one person. The noneconomic component requires consideration of a veteran’s ability to secure or follow substantially gainful employment, including factors such as the veteran’s history of education, skill, and training, as well as his or her ability to perform the physical and mental activities required by the occupation in question. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The evidence reflects that the Veteran last worked in September 2002 and that he does not receive income from employment exceeding the federal poverty threshold. See November 2011 VA Form 21-8940. This in accord with the economic component of entitlement to an extraschedular TDIU. Regarding the noneconomic component, the Veteran reported completing two years of college, training in a machinist technical program, and prior work as a machinist from 1989 to 2002. See November 2011 VA Form 21-8940. The evidence of record indicates that the Veteran is not able to follow a substantially gainful occupation as a result of his service-connected PTSD with depression. In May 2006, the Social Security Administration (SSA) determined that the Veteran was disabled from January 31, 2003, partly as a result of his PTSD with depression. See May 2006 SSA Decision. SSA based its determination on the opinion of Dr. Sewell, who opined that the Veteran was unable to meet competitive standards in the ability to remember work-like procedures, maintain regular attendance, be punctual, and sustain an ordinary routine without strict supervision, and found the Veteran to be markedly limited in the ability to maintain concentration, persistence, or pace. Dr. Sewell also opined that the Veteran would be unable to meet competitive standards in the ability to work in coordination with or proximity to others without being unduly distracted, accept instructions and respond appropriately to criticism from supervisors, get along with co-workers or peers without unduly distracting them or exhibiting behavioral extremes, or interact appropriately with the general public. Though the Board is not bound by SSA findings, they are probative. Notably, in April 2010, the Veteran’s treating VA psychiatrist, Dr. Vadnal opined that the Veteran was unable to work and maintain employment due to the severity of his PTSD with depression. See April 2010 statement. Dr. Vadnal noted that despite the Veteran’s full compliance with medication and therapy recommendations, his psychiatric symptoms had not been relieved, and concluded that he was totally and permanently unemployable. Id. In June 2011, Dr. Vadnal described the Veteran’s symptoms, including episodes of anxiety escalating into panic, difficulty concentrating on complex tasks, difficulty getting along with co-workers, irritability with assault ideation, and isolative behavior, and indicated that such symptoms significantly interfered with the Veteran’s ability to keep and maintain any functionally appropriate relationship, to include employment. See June 2011 statement. While the February 2014 VA examiner found that the Veteran’s PTSD with depression resulted in occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, whereas the September 2019 VA examiner indicated the disorder resulted in reduced reliability and productivity, both examiners noted that the Veteran exhibited difficulty in establishing and maintaining effective work relationships and difficulty adapting to stressful circumstances, including work or a worklike setting, which the Board finds is demonstrative of an inability to work. See February 2014 and September 2019 VA examination reports. At his February 2018 hearing, the Veteran testified that he was unable to work due to his psychiatric disorder and reported that he had trouble with authority and was too argumentative. See Board Hearing Transcript at 22. His wife also testified that he would not be able to hold a job as a result of his attitude, depression, and inability to get along with people. Id. at 23. In denying an extraschedular TDIU in November 2020, VA’s Director of Compensation Service conceded that the Veteran’s service-connected psychiatric disorder did indeed cause functional limitations, but found that the preponderance of the evidence did not show the Veteran was unable to obtain or maintain gainful employment due to his service-connected condition. However, as noted, VA examiners and treatment providers indicate that the Veteran has considerable difficulty engaging in employment activities. The Board emphasizes that the determination of whether a veteran is unable to secure of follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Given the Veteran’s competent and credible reports, his level of education and occupational background, the above-cited evidence of record, and affording him the benefit of the doubt, the Board finds that the Veteran has been unable to secure or maintain a substantially gainful occupation due to his service-connected PTSD with depression. Accordingly, an extraschedular TDIU is warranted for the entire appeal period, from June 22, 2011. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.S. Mahoney 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.