Citation Nr: 21009558 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 09-07 758 DATE: February 22, 2021 ORDER A total disability rating due to individual unemployability (TDIU), pursuant to 38 C.F.R. § 4.16(b), on an extraschedular basis, prior to February 4, 2014, is granted, subject to controlling regulations governing the payment of monetary awards. FINDING OF FACT Prior to February 4, 2014, the Veteran’s service-connected PTSD precluded him from securing or following a substantially gainful occupation. CONCLUSION OF LAW Prior to February 4, 2014, the criteria for entitlement to a TDIU, pursuant to 38 C.F.R. § 4.16(b), on an extraschedular basis, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 1964 to March 1967, including foreign service in the Republic of Vietnam. For his meritorious service, the Veteran was awarded (among other decorations) the Purple Heart, the Combat Infantryman Badge, the Vietnam Campaign Medal, and the Army Commendation Medal with Device. This case initially came before the Board on appeal from a June 2007 rating decision of the VA Regional Office (RO). In that decision, the RO granted service connection for PTSD and assigned a 10 percent rating, effective the December 18, 2006 date of claim. In a September 2007 notice of disagreement (NOD), the Veteran timely appealed the initial rating assigned. The Veteran testified during a November 2012 videoconference hearing. A transcript of this proceeding has been associated with the record. In June 2017, he was informed that the Veterans Law Judge (VLJ) who presided over the hearing was no longer with the Board and was offered a hearing before a different VLJ. The following month, the Veteran indicated that he did not wish to appear at another hearing and requested that the appeals (at the time) be considered on the evidence of record. 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. The issue of the Veteran’s entitlement to a TDIU was first raised during the November 2012 videoconference hearing and was remanded by the Board in June 2014 as part and parcel of the claim for a higher initial rating for PTSD. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009) (the issue of entitlement to a TDIU is part of an initial or increased rating claim when such claim is raised by the record). In an April 2015 rating decision, the RO granted a TDIU, effective October 16, 2014. The Veteran filed a formal application for TDIU, via VA Form 21-8940, in August 2014. Because the Veteran submitted a substantially complete application within one year of the October 2014 rating decision granting schedular entitlement to this benefit, the RO granted the current effective date for schedular TDIU of February 4, 2014 in an April 2015 rating decision. However, the effective date in this case should not be based on the date of filing a formal claim for TDIU. Rather, the date of claim for purposes of the TDIU effective date determination is the December 18, 2006 date of claim for service connection for PTSD, as the claim for a higher initial rating for PTSD is the claim from which the issue of entitlement to a TDIU was inferred. Harper v. Wilkie, 30 Vet. App. 356, 361-62 (2018) (the Veteran’s notice of disagreement with the initial rating assigned in connection with the grant of service connection, combined with evidence of unemployability, resulted in the issue of entitlement to a TDIU from the effective date of the grant of service connection being on appeal). In Harper, 30 Vet. App. at 361-62, the Court confirmed that when the issue of entitlement to a TDIU is raised as part and parcel of a rating claim, it should be treated separately from a formal claim for TDIU in all aspects of the appeal. In December 2015 and at the request of the Veteran, his former representative informed VA of his intent to withdraw. The Veteran remains unrepresented at this time. 38 C.F.R. § 20.608. The Board remanded the issue of entitlement to an extraschedular TDIU prior to February 4, 2014 for referral to the Director of Compensation (Director) in both September 2017 and January 2020. Extraschedular TDIU A TDIU is provided 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 obtaining or maintaining any gainful employment, by reason of his or her service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Under 38 C.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). However, for those veterans who fail to meet the percentage requirements set forth above in accordance with 38 C.F.R. § 4.16 (a), total disability ratings for compensation may nevertheless be assigned on an extraschedular basis by the Director when it is found that the service-connected disabilities are sufficient to produce unemployability. 38 C.F.R. § 4.16 (b). 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. Prior to February 4, 2014, the Veteran was rated at 50 percent for PTSD with major depressive disorder evaluated, 20 percent for right shoulder residuals fragment wounds with tendinopathy and arthritis, 10 percent for tinnitus, and a noncompensable ratings for bilateral hearing loss and right shoulder scar, respectively. He does not meet the schedular criteria for a TDIU prior to February 4, 2014, as his combined disability evaluation is 60 percent and he does not meet any of the criteria listed in 38 C.F.R. § 4.16(a)(1)-(5) that would permit his combined disabilities to be treated as a single disability. The Board lacks the power to award an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). This holding has been questioned, see Wages v. McDonald, 27 Vet. App. 233, 239-240 (2015) (Kasold, C.J., concurring) (“The Bowling holding was rendered with little analysis of 38 C.F.R. § 4.16(b) or its interplay with the statutory scheme for adjudicating claims, which requires decisions of an agency of original jurisdiction to be appealed to the Board and final decisions to be rendered by the Board, see 38 U.S.C. §§ 7104 and 7105. Frankly, Bowling appears to be wrongly decided”), but the Court recently declined to address whether it should be overruled. See Stafford v. Wilkie, No. 18-4520, 2020 U.S. App. Vet. Claims LEXIS 662 (Apr. 15, 2020) (nonprecedential panel Order) (dismissing the appeal as moot) and id., slip op at 2 (Greenberg, J., dissenting) (“What evil lurks behind the Court deciding whether Bowling v. Principi, 15 Vet. App. 1 (2001) remains good law?”). Here, following the January 2020 Board remand for referral, the Director denied entitlement to an extraschedular TDIU in a November 2020 Advisory Opinion. Thus, the Board now has the power to award an extraschedular TDIU and reviews the Director’s decision, which is not evidence, de novo. Wages, 27 Vet. App. at 238-39. Turning to the merits, the Veteran served as a full-time bus driver for the Metropolitan Atlanta Regional Transit Authority (MARTA) from August 1972 to April 2002, and part time through June 2007, when he retired because his service-connected PTSD became too much for him. The Veteran indicated he has a high school education on his VA Form 21-8940 and his Social Security Administration (SSA) records indicate he was a C-student. His job duties were described as transporting passengers over specified routs to local or distant points according to a time schedule, assist passengers with baggage, comply with local traffic laws and regulations, report delays or accidents, make repairs and change tires, load or unload baggage, and occasionally transport pupils to and from school. The Veteran’s PTSD symptoms were described as severe and affecting all areas of life and his physical health problems as early as an October 2006 private medical report. The October 2006 private examiner noted the Veteran suffered from persistent reexperiencing of traumatic war events through flashbacks, intrusive recollections, and nightmares, one of which resulted in the Veteran hitting his wife in the head when she returned to the bed and startled him. He also experienced increased arousal, severely disrupted sleep, decreased concentration, irritability and increased startle. A October 2006 VA medical report indicated the Veteran experienced suicidal thoughts at times and moments of not wanting to live, hopelessness, worthlessness, racing thoughts, flashbacks and nightmares. A May 2007 VA examination reflected impaired memory, including forgetting names, recent events and directions; important competencies for the Veteran’s proscribed duties as a bus driver. The October 2006 private examiner examined the Veteran in March 2010 and again reported persistent reexperiencing of traumatic war events through nightmares now described as vivid, flashbacks and intrusive thoughts and feelings, intense distress and response to triggers, long standing severely disrupted sleep, impaired concentration, irritability and increased startle. She concluded that his PTSD symptoms were severe and affected all areas of his life, including his physical health, his relationship with his wife and his daily functioning. Lastly, November 2012 lay statements were submitted by the Veteran’s good friend and his son illustrating the degradation of the Veteran’s health, describing at least two instances when the Veteran needed to be sent to the emergency room due to fatigue and exhaustion. The ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical question, but rather a determination that must be made by an adjudicator. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2014). In considering the question of the Veteran’s capability of securing and following substantially gainful employment prior to February 4, 2014, the evidence shows that his service-connected PTSD alone caused a range of symptoms that would prevent substantially gainful employment. His 35-year post-military career as a MARTA bus driver required him to develop skills in concentration, reaction time, accountability, memory, promptness, and ability to follow directions. As the evidence above shows, the Veteran’s PTSD symptoms have manifested irritability, increased startle, memory loss, inability to follow directions, decreased concentration, physiological response to triggers, mood swings, flashbacks, passive suicidal ideation, and impaired memory to include forgetting names, directions and recent events; symptoms incompatible with operating a bus. Even if the Veteran could perform the labor associated with a sedentary job, the above described symptoms, the Veteran’s education and experience (that was limited due to his service-connected PTSD), and the overall constant nature of the symptoms would likely preclude him from securing and following substantially gainful employment. The evidence is thus at least evenly balanced as to whether the Veteran’s service-connected PTSD alone rendered him unable to secure or follow substantially gainful employment in light of his education and occupational history prior to February 4, 2014. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor the Veteran, entitlement to a TDIU on an extraschedular basis, pursuant to 38 C.F.R. § 4.16(b), prior to February 4, 2014 is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. As there is some uncertainty as to the Veteran’s precise employment status between December 18, 2006 and February 4, 2014, the Board will not assign the effective date for TDIU n the first instance and will allow the AOJ to do so. Urban v. Principi, 18 Vet. App. 143, 145 (2004) (per curiam order) (“To the extent that [the appellant] is arguing that the Board must assign, sua sponte, an effective date once it awards a rating of TDIU on appeal from an RO decision, such an argument is unavailing unless an NOD is then of record as to the downstream issue of an effective date for the assignment of that rating”). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board JR Cummings, 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.