Citation Nr: 21009401 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 09-04 785 DATE: February 22, 2021 ORDER An extraschedular total disability rating based on individual unemployability (TDIU) from March 18, 2002 until April 17, 2009 is granted. FINDING OF FACT Giving the Veteran the benefit of the doubt, the Veteran’s service-connected posttraumatic stress disorder with associated anxiety disorder (PTSD/anxiety) precluded him from being able to secure or follow substantially gainful employment from March 18, 2002 until April 17, 2009. CONCLUSION OF LAW The criteria for an extraschedular TDIU from March 18, 2002 until April 17, 2009 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.341, 4.3, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1964 to August 1966. This matter originally came before the Board of Veterans’ Appeals (Board) from an April 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. This matter has previously been remanded by the Board for further development, most recently in July 2020. This matter is again before the Board and has been advanced on the docket pursuant to 38 C.F.R. § 20.902(c). An extraschedular TDIU from March 18, 2002 until April 17, 2009 is granted. A TDIU 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 a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided at least one service-connected 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). However, even when the percentage requirements are not met, entitlement to a total rating on an extraschedular basis may nonetheless be granted in exceptional cases, when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b). The benefit of the doubt will be given to the veteran when there is an approximate balance of evidence concerning any material issue in the matter. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A review of the record shows that from March 18, 2002 until April 17, 2009, the Veteran did not meet the schedular requirements of 38 C.F.R. § 4.16(a). In that regard, service connection had solely been established for PTSD/anxiety, rated at 50 percent or lower during that time period. The Veteran’s appeal was previously referred to the Director of Compensation Service for a decision as to whether a TDIU should be awarded on an extraschedular basis under the provisions of 38 C.F.R. § 4.16(b). See November 2020 VA Memo. Upon review of all the evidence of record, the Board gives the Veteran the benefit of the doubt and finds that from March 18, 2002 until April 17, 2009, the Veteran was unemployable due to his service-connected PTSD/anxiety. The Board initially notes that the Veteran stopped working as a token booth clerk for the transit authority in 1986. See VA 21-8940. The Veteran asserted that he had been unable to work ever since due to his PTSD/anxiety. See April 2014 Fax Cover Sheet. Prior work experience included being a barber, disc jockey, and truck driver. See November 2020 VA Memo. He had two years of college experience in electronics. See VA 21-8940. The evidence of record, summarized below, supports a finding that the Veteran’s PTSD/anxiety was of such severity that it precluded his ability to secure or follow gainful employment from March 18, 2002 until April 17, 2009, when taking into account the Veteran’s psychiatric impairment, prior work experience, and educational history. In 2002, the Veteran reported having panic attacks, depression, anxiety, and problems with stress. See July 2002 Statement in Support of Claim; September 2002 Correspondence. Medical records from 2002 showed a sporadic work history, that the Veteran always worked better alone, that the Veteran had been married twice, no contact with his older children, no specific support system other than his spouse whom he argued with at times, panic attacks, and intermittent depression. At times, the Veteran woke up gasping for air. It took a long time for him to settle his nerves when this occurred. After those incidents, the Veteran was left feeling weak. The Veteran would get out of bed and go into the bathroom to attempt to calm himself. The Veteran reported a rapid heartbeat and that his nerves would just light up. He recently had panic attacks, and his sleep pattern fluctuated. When the Veteran got panic attacks, he also experienced physical symptoms including GI distress, chest discomfort, numbness, tingling, and felt very anxious. The Veteran reported sleep difficulties and anxiety that often was unexpected. The Veteran had a circumstantial thought process, his immediate memory was impaired, and his recent memory was impaired. The Veteran was somewhat sullen, had a flat affect, and did not make direct eye contact. The Veteran’s anxiety and panic attacks had increased. See December 2002 CAPRI; March 2013 CAPRI. In 2003, the Veteran reported anxiety, panic attacks, and a sleep disorder. As he aged, he had more anxiety and more panic attacks. He could never keep a steady job or do anything which caused too much stress or pressure. His character and behavior were unstable and irrational. The Veteran had a constricted affect, an anxious mood, delayed and soft speech, and impaired recent memory. The Veteran also reported nightmares. The Veteran had an angry affect, an irritable mood, impaired recent memory, and was not compliant with his medications. The Veteran had a fear of crowds, intrusive memories, visual flashbacks, a heightened hyper-startle response, an irritable mood, a circumstantial thought process, impaired recent memory, a depressed mood, visual hallucinations, and only somewhat intact abstraction. See January 2003 Statement in Support of Claim; August 2003 Form 9; March 2013 CAPRI. Medical records from 2004 showed the Veteran’s report that he was experiencing more and more difficulty with intrusive thoughts, fear of crowds, anger, and hypervigilance. Upon examination, it was found that the Veteran had an irritable mood, blunted affect, delayed speech, circumstantial thought process, impaired recent memory, and that his abstraction was only somewhat intact. The Veteran had retarded psychomotor activity, argued with his spouse, had a depressed mood, and had an impaired recent memory. The Veteran reported that he still had intrusive thoughts. He had a dysphoric mood and had visual hallucinations. The Veteran continued to have hypervigilance, a hyper-startled response, the inability to trust others, poor concentration, and intrusive memories. The Veteran had a depressed affect, delayed speech, and sleep problems. The Veteran was more anxious and had more sleeping problems than before. The Veteran reported that there were some days where it was difficult to go out and pick up his daughter from school. At times, he woke up very startled during the night. See August 2011 CAPRI; March 2013 CAPRI. A 2005 examination showed the Veteran’s report that he could not work due to his medical conditions. The Veteran reported flashbacks, intrusive recollections, hypervigilance, social avoidance, and general distress. His attire was somewhat unkempt and tattered, and his hygiene and grooming were marginally adequate, although he appeared somewhat disheveled. He had a mild speech impediment, which was quite noticeable. The Veteran reported mild episodic problems with short-term memory and concentration skills and had occasional nightmares. The Veteran went to church and to the gym but stayed to himself while there. Other than that, the Veteran did not venture out. The Veteran had mild emotional detachment, was estranged from others, had little social support, and had a severe startle response, even when his little daughter came up to him from behind. His daughter had to wake him up from far away because of the startle issue. The Veteran was hypervigilant, constantly looked around, and felt apprehensive in public. He had sleep problems. He was prone to recurring anxiety, distress, worry, and rumination. He had sustained periods of being keyed up with trouble relaxing. He was prone to recurring physical restlessness. He had areas of disruptive performance or ability with certain activities of daily living. This was particularly true with tasks which required him to go into public/crowded places or which involved novel social situations. He could perform simple household chores. See March 2005 VA Examination. Other medical records from 2005 showed a depressed mood, a circumstantial thought process, impaired recent memory, only somewhat intact abstraction, panic attacks, anxiety, and considerable problems with his spouse including arguments. See March 2013 CAPRI. In 2006, the Veteran reported countless anxiety, stress, depression, hallucinations, delusions, pill obsessions, phobias, panic attacks, and sleepless nights and days during the past 40 years. The panic attacks occurred more than four times per week along with all the other problems. See August 2006 Correspondence. As to which periods of time these symptoms and their accompanying severity occurred, it is unclear. Medical records from 2006 showed the Veteran’s belief that he started wheezing because of anxiety. His symptoms suggested a panic disorder with recurrent brief attacks with somatic and cognitive symptoms, shortness of breath, nervous feelings, confusion, the inability to stay still, and the need to sometimes go outdoors or to open doors/windows. The Veteran reported feeling anxious and depressed. He felt a large burden from caring for his daughter. The Veteran feared that he might die and leave his daughter alone. He had an anxious and depressed mood with an anxious affect. The Veteran had panic attacks. He was bitter and upset after speaking to his ex-spouse. He found himself often hanging up the phone on her. He had ongoing tension/anxiety, and sometimes even felt panic at night. See March 2013 CAPRI. Medical records from 2007 showed that the Veteran had not been totally forthcoming. The Veteran had an increase in symptoms, psychomotor retardation, a constricted affect, a depressed mood, soft speech, chronic and severe PTSD, recurrent dreams, and intrusive distressing thoughts. He was emotionally upset when reminded of trauma, had intense physical reactions when reminded of trauma, made persistent efforts to avoid stuff that reminded him of trauma, had a marked loss of interest, felt detached or cut off from others, felt that he could not feel a whole range of emotions, felt that his future plans and hopes had changed, had sleep problems, was continuously irritable, was overtly alert, was more jumpy, and was more startled. The Veteran woke up regularly at two in the morning to check on his daughter. He was reserved in associations with others. He had hypervigilance, especially when driving. He had a constant sense of impending danger. He had ongoing concerns for his daughter, had anxiety, had depression, and had a sense of a foreshortened future. The Veteran had nightmares; thoughts that he did not want, which he tried hard not to think about; was constantly on guard, watchful, or easily startled; and felt numb/detached from others, activities, or surroundings. He still had sleep problems due to hypervigilance. See December 2008 CAPRI; March 2013 CAPRI. In 2008, the Veteran reported that his PTSD/anxiety symptoms had worsened. He had severe anxiety and stress ever since service. The Veteran’s brother reported seeing the Veteran in 2007 and that his anxiety had worsened. See February 2008 Statement in Support of Claim; October 2008 Buddy/Lay Statement. Medical records from 2008 showed that raising his daughter was a chronic stressor. The Veteran was worried that he might not live to see his daughter become an adult and worried about who would care for her. The Veteran had poor eye contact, slow and soft speech, psychomotor retardation, a dysthymic mood, and a constricted affect. The Veteran was looking for a new mother for his daughter and put up a paper advertisement for a woman. He spent his time doing things alone while his daughter was at school. The Veteran had a panic attack. The Veteran was quite anxious. The Veteran reported anxiety problem or nervousness, and family or relationship problems. The Veteran had a lot to do at home and could not always clean the house. The Veteran had gotten a divorce in 2005. See December 2008 CAPRI; March 2013 CAPRI. An April 17, 2009 examination found that the Veteran’s PTSD/anxiety symptoms had mildly increased since the 2005 examination. The Veteran had ongoing social anxiety and hypervigilance in crowds. When the Veteran was less busy, he would start ruminating and had intrusive thoughts. The Veteran went swimming but would not talk to anyone and stayed to himself. He was clearly uncomfortable in crowds and would make his daughter sit next to him at restaurants due to constant hypervigilance. His ability to enjoy social activities was impaired and he only did solitary activities. He had no friends, and no one came over. He had little social contact other than with his daughter. He had irritability, which he hid from his daughter, which caused an emotional negative state for him. He constantly checked the windows and doors at home and would get up during the night to do it. He kept a baseball bat on hand. He had a startle response to loud noises, people, and people approaching from behind. He had ongoing generalized anxiety symptoms including a tendency to engage in episodes of excessive worry, brooding, and rumination about past trouble and current stressors. He had frequent episodes of tension and anxiety. He often felt keyed up and could not relax. At times, he paced around. He tended to feel fatigued much of the day due to anxiety. He had constant apprehension and a sense of being in harm’s way. He had significant impairments of social functioning. He was not getting a continuity of care. He had five different psychiatrists see him since 2004, which was a real problem. He had difficulty doing some activities of daily living, which included any activities that required him to deal with crowds or the public. He would try to shop during off hours and would get in and out as quickly as possible. He was tense in public, anxious, hypervigilant, and was prone to irritability. He had no significant adult relationships. He had an increase in nightmares, social anxiety, and marked isolation in adult contact. He did not trust others, worried a ton, had daily intrusive thoughts, had mild irritability, and had recurring moodiness. He had sleep disturbance. See April 2017 VA Examination. The Veteran reported that from March 18, 2002 until April 17, 2009, the Veteran had severe PTSD/anxiety symptoms such as depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment, mild memory loss, and the inability to perform occupational tasks. See April 2014 Fax Cover Sheet. The Board notes that a TDIU was granted for a period beginning on April 17, 2009. See February 2019 Rating Decision – Codesheet. The Board finds the medical evidence above highly probative.  The Board also finds the Veteran and others competent to make the above lay statements.  The Board has no reason to doubt their credibility.  The Board gives the lay statements great probative value.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).  After having carefully reviewed the record, the Board gives the Veteran the benefit of the doubt and finds that entitlement to an extraschedular TDIU from March 18, 2002 until April 17, 2009, based on his service-connected PTSD/anxiety, has been established under the provisions of 38 C.F.R. § 4.16(b). Specifically, the Veteran had panic attacks, which included physical symptoms and took a long time to settle down from; sleep problems/nightmares; fatigue; anxiety, including excessive worry, brooding, and rumination; suspiciousness; depression; flattened, depressed, angry, blunted, anxious, and constricted affects; irritable, depressed, dysphoric, and anxious moods; low interest; irritability; problems with making eye contact; impaired immediate, recent, and short-term memory; concentration problems; confusion; delayed soft speech and a speech impediment; a circumstantial thought process; somewhat intact abstraction; retarded psychomotor activity; the inability to stay still; the inability to relax; a fear of crowds; social avoidance; detachment from others; hypervigilance; an exaggerated startle response; the inability to trust others; visual hallucinations and visual flashbacks; intrusive memories; a constant sense of impending danger; a sense of a foreshortened future; and a sense of being in harm’s way. The Veteran was unable to establish and maintain effective work relationships and had difficulty adapting to stressful circumstances like those of a work setting.   In sum, the combined effect of the Veteran’s PTSD/anxiety symptoms precluded him from being able to secure or follow substantially gainful employment. The Veteran would be unable to secure substantially gainful employment. Even if the Veteran were able to, he would be unable to follow substantially gainful employment. He would be unable to have effective relationships with supervisors, coworkers, and the public, if the Veteran was able to be around them at all. The Veteran would also be unable to achieve the required level of productivity and would require significant time off and/or a significant number of breaks. Additionally, the Veteran’s PTSD/anxiety symptoms were previously adjudicated to be sufficiently severe to warrant a TDIU beginning on April 17, 2009. The examination which took place on that date found that over the previous four years, the Veteran’s disability had only mildly increased. Finally, by early 2002, medical records showed the Veteran’s inability to have effective occupational relationships; argumentativeness; irritability; panic attacks, which included physical symptoms and took a long time to settle down from; anxiety; depression; sleep problems; a somber affect; and a sporadic work history. Continued on next page   Additionally, the Veteran had not worked since 1986 and had reported the inability to work due to his PTSD/anxiety since that time. As such, the Board gives the Veteran the benefit of the doubt and finds that the Veteran was unable to secure or follow substantially gainful employment due to his service-connected PTSD/anxiety from at least March 18, 2002, the date on which service-connection for PTSD/anxiety was established from. Therefore, an extraschedular TDIU from March 18, 2002 until April 17, 2009 is granted. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Dougan, Associate 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.