Citation Nr: 21008231 Decision Date: 02/12/21 Archive Date: 02/12/21 DOCKET NO. 09-45 324 DATE: February 12, 2021 ORDER Prior to October 11, 2006, entitlement to a finding of total individual unemployability due to service-connected disabilities (TDIU) on an extraschedular basis is granted. FINDING OF FACT Prior to October 11, 2006, the most probative evidence demonstrates that the Veteran’s service-connected posttraumatic stress disorder (PTSD) rendered him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW Prior to October 11, 2006, the criteria for TDIU on an extraschedular basis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.15, 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from July 1974 to July 1976. This matter comes before the Board of Veterans’ Appeals (Board) from a May 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In a September 2017 Board decision, the Board found that the Veteran met the criteria for a TDIU on October 11, 2006, but that the criteria for entitlement to a TDIU prior to October 11, 2006, had not been met. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). In a December 2019 memorandum decision, the Court vacated the portion of the Board’s decision that denied entitlement to a TDIU prior to October 11, 2006. The matter has been returned to the Board for review. Total disability will be considered to exist 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. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341(a). If the schedular rating is less than total, a total rating can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that he has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16(a). If not, all veterans who shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). If 4.16(a) is not met, the case will be referred to the Director of the Compensation Service, for extraschedular consideration of all veterans who are unemployable by reason of service-connected disabilities. Id. Prior to October 11, 2006, the Veteran was only service connected for PTSD and assigned a 30 percent rating from September 8, 1999. Because the Veteran was not in receipt of the minimum schedular rating required for the award of a TDIU under 38 C.F.R. § 4.16(a), the Board is to consider whether 38 C.F.R. § 4.16(b) is for application. Fanning v. Brown, 4 Vet. App. 225, 229 (1993). As discussed below, the claim has already been referred to the Director of Compensation Service for extraschedular consideration. Though VA is required to obtain the Director’s decision before awarding extraschedular TDIU benefits in the first instance, the Board is not bound by the Director’s decision or otherwise limited in its scope of review that determination. Wages v. McDonald, 27 Vet. App. 233, 236-38 (2015) (citing 38 U.S.C. § 511(a), 7104(a); 38 C.F.R. § 4.16(b)). The central inquiry is whether the Veteran’s service-connected PTSD renders him unemployable. In this regard, the question is “whether [a] veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to a veteran’s education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). As for the Veteran’s education and occupational history, he completed high school and two years of college. He was previously employed as a chemical operator, processing chemicals and transferring chemicals for one container to another. Social Security Administration (SSA) records show that the Veteran was granted SSA disability benefits from January 15, 1996, finding that the Veteran was disabled from that date. A July 1997 SSA decision noted the Veteran’s prior occupation as a chemical operator and that the position was semiskilled to light and heavy. The SSA decision found that the Veteran had severe impairments consisting of his cervical and lumbar spine disabilities, chronic fatigue syndrome, and major depression. The Veteran had been evaluated with severe major depression by Dr. A.M., who found that the Veteran’s judgment was impaired, decreased energy, insomnia, and limitation in capacity to cope with stress, to relate, and to persist in a task. The SSA decision found that the Veteran did not have transferable skills to perform other work within his physical and mental residual functional capacity. A November 1996 statement from the Veteran’s former supervisor noted that the Veteran’s performance changed after February 1992 and that he had to stop working due to health problems. VA treatment records reflect diagnoses of major depressive disorder and PTSD with feelings of anxiety. A March 1999 VA treatment record indicated that the Veteran was referred for a neuropsychological test for reports of memory loss and episodes of black outs of memory. An April 1999 VA treatment record shows that the Veteran had sleep disturbance, nightmares, increased irritability, startle response, and decreased activities with avoidance of events similar to his trauma experience. A May 1999 VA treatment record shows that the Veteran reported problems with nightmares and depression. There was no evidence of a thought disorder, but the Veteran claimed that he had occasional visions and reported that he was forgetful at times. He was assessed with a history of major depressive disorder and possible PTSD with anxiety. A November 2000 VA treatment record shows that the Veteran angered easily, experienced depression on and off, and had nightmares at times. A January 2001 disability evaluation shows that the Veteran’s affect was extremely sad, and he cried several times for no apparent reason. His mood was depressed, and the Veteran expressed helplessness and hopelessness. There was notable psychomotor retardation and past suicidal ideation. The Veteran was easily startled, and, during sleep, was prone to physical aggression. His thought process was marked by a sense of persecution, auditory hallucinations, periods of blackouts, fear of crowds and enclosed spaces. He also reported intrusive thoughts of violent content that perturbed him. A March 2003 VA examination report shows a diagnosis of PTSD with predominantly depressive symptoms. The Veteran reported that he had memory problems, disorientation, and confusion after his separation from service. The examiner found that the Veteran’s PTSD symptoms and impairments interfered with employment and social functioning; specifically, his avoidant non-social behavior as well as his cervical and lumbar disc problem. Another March 2003 VA examination report noted that the Veteran’s testing was not considered reliable, but that the Veteran’s underlying profile was one of anger, suspiciousness, anxiety, and worry. It was noted that he was also isolated from others. The examiner noted that the Veteran had been diagnosed with depression and had been on medication since 1996. The Veteran had symptoms of increased arousal, sleep disturbance, irritability, startle response, and hypervigilance. The Veteran also had persistent reexperience of trauma as evidenced by recurrent dreams, recurrent thoughts, and physiological reactivity. He also endorsed persistent avoidant behavior and had decreased friends and activities. The examiner listed a diagnosis of PTSD. An August 2003 VA treatment record noted the Veteran’s symptoms of PTSD and noted that the Veteran was employed as a chemical operator for 20 years. The Veteran reported that his employer encouraged him to retire due to his increased anger and irritability which affected his work. A November 2005 VA examination report shows that the Veteran reported intrusive thoughts, startle reactions, difficulty in dealing with daily functions, marital discord due to anger, and nightmares with screaming. It was noted that he had no friends and avoided people and close relationships. In addition, he avoided stores with people because of fear, paranoia and stress intolerance. The examiner found that the PTSD symptoms of fear of friendship, anger, depression and antisocial behavior interfered with employment and social functioning. The examiner further noted that the Veteran had an inability to function in a social as well as economic setting and his symptom complex had become more severe since his past examinations. The Veteran had nightmares, flashbacks, persistent avoidance of stimuli, avoiding people, places, and activities, restricted range of affect, insomnia, irritability and outbursts of anger, and increased startle response. The RO referred the matter of TDIU on an extraschedular basis prior to July 29, 2015, to the Director of Compensation Service for an advisory opinion. The Director determined that TDIU on an extraschedular basis was not warranted. The Director noted the Veteran’s PTSD symptoms, his work history, and education. The Director stated that the Veteran’s symptoms were considered and found that the Veteran’s level of impairment was consistent with his assigned disability rating and that the grant of an extraschedular rating was not warranted. An October 2020 employability evaluation, completed by a private vocational consultant, P.T., was submitted by the Veteran. P.T. reviewed the evidence, interviewed the Veteran, and opined that it was at least as likely as not that the Veteran was unable to secure and follow substantially gainful employment from at least September 1999 to the present. The Veteran reported symptoms that he experienced prior to October 2006 including anxiety, intrusive thoughts, depression, sleep impairment, fatigue, difficulty with concentration, avoidance of others, and a short temper. P.T. explained that the interview with the Veteran only substantiated her conclusions. The Veteran had high school education and two years of college, but no degree. The Veteran had minimal basic computer skills with no other training or education and that he previously worked as a chemical operator. P.T. stated that the Veteran’s plant supervisors and management noticed a change in his behavior when he returned to work after service. The Veteran reported that he was aggressive and became involved in verbal altercations with coworkers. P.T. recited the medical evidence of record and noted that the Veteran had well documented symptoms of sleep impairment from nightmares, hypervigilance, anxiety, intrusive thoughts, depression, and subsequent impairments in concentration, focus and memory since at least September 1999. She also found that the Veteran’s PTSD more likely than not precluded his ability to stay on task for at least two consecutive hours, learn new material retain information necessary for functioning in a work environment, and maintain adequate pace and productivity as required in all employment. She opined that the Veteran’s inability to concentrate and stay on task would have more likely than not resulted in poor performance and an inability to successfully or reliably complete the productivity and pace requirements of any occupation within the competitive work environment. Considering his work history and education, P.T. found that the Veteran’s minimal basic computer skills were insufficient for occupations within the sedentary physical demand level. She explained that his work history is significant for employment in one occupation within a medium physical demand skill and any skills he would have acquired from his past employment would not readily transfer to occupations within the sedentary physical demand level. P.T. summarized that the Veteran’s PTSD precluded his ability to appropriately interact with others in both occupational and social settings, stay on task, retain information necessary for functioning in a work environment, and maintain adequate pace and productivity as required in all competitive employment. Considering the above, the Board finds that the most probative evidence of record demonstrates that the Veteran’s service-connected PTSD precluded him from securing and following substantially gainful employment prior to October 11, 2006. Unlike the criteria for an extraschedular rating under 38 C.F.R. § 3.321, the grant of TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b) is based on a subjective standard that seeks to determine if a particular Veteran is precluded from employment based on his service-connected disabilities. Specifically, the Board finds the October 2020 vocational consultant’s opinion persuasive concerning the impact of the Veteran’s PTSD on his ability to work prior to October 11, 2006, in conjunction with the medical evidence of record that shows that the Veteran’s symptoms would pose significant barriers to obtaining and maintaining substantially gainful employment. See Ray v. Wilkie, 31 Vet. App. 58, 72 (2019) (holding that the phrase “unable to secure and follow a substantially gainful occupation” in § 4.16 has economic and noneconomic components, the latter of which focuses on the individual veteran’s ability to perform the physical and mental acts necessary for such an occupation). Though the Veteran had other disabilities that impacted his ability to work prior to October 11, 2006, the Board finds it significant that the Veteran’s PTSD resulted in symptoms that made it difficult to work with others and to perform his duties. In addition, P.T. stated that the Veteran’s PTSD symptoms would inability to concentrate and stay on task would have more likely than not resulted in poor performance and an inability to successfully or reliably complete the productivity and pace requirements of any occupation within the competitive work environment. Moreover, the Veteran’s limited education and computer skills and lack of transferable skills has also been considered. Resolving reasonable doubt in the Veteran’s favor, the Board finds that he is entitled to an award of TDIU on an extra-schedular basis prior to October 11, 2006. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Seay, 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.