Citation Nr: 21009766 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 17-28 824 DATE: February 23, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. FINDING OF FACT The Veteran’s service-connected disability has a rating of 70 percent and it precludes securing and following substantial gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU on a schedular basis have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1971 to February 1973. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2016 rating decision by the Department of Veterans Affairs (VA) Seattle, Washington Regional Office (RO). In December 2019, the Veteran presented testimony at a video hearing before the undersigned Veterans Law Judge (VLJ). 1. Entitlement to TDIU due to service-connected disabilities is granted. VA will grant TDIU when the evidence shows that a Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU is granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. 38 C.F.R. § 4.16(a). If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. 38 C.F.R. §§ 3.340, 3.341, 4.16. 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). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the veteran’s background including his employment and educational history. 38 C.F.R. §§ 3.321(b), 4.16(b). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Rather, the issue must be referred to the Director of Compensation Service for such assessment in the first instance. Kuppamala v. McDonald, 27 Vet. App. 447, 457 (2015). Thereafter, the Board has jurisdiction to review the entirety of the Director’s decision denying or granting an extraschedular rating and is authorized to assign an extraschedular rating when appropriate. Kuppamala, 27 Vet. App. at 457. For VA purposes, the term unemployability is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91, 57 Fed. Reg. 2,317 (Jan. 21, 1992). Consideration may be given to the 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). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. The ability to work sporadically or obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). Prior to April 15, 2019, the Veteran meets the schedular criteria for a TDIU, as he is service connected for the following: posttraumatic stress disorder (PTSD), evaluated as 70 percent disabling. Thus, the percentage requirements for a TDIU are met because the Veteran has one service-connected disability, which is rated as 60 percent disabling. 38 C.F.R. § 4.16 (a). On and after April 15, 2019, the Veteran’s combined evaluation was 100 percent. As above, the percentage requirements for a TDIU are met because the Veteran has two or more service-connected disabilities, one of which is rated as at least 40 percent disabling, and his combined disability evaluation is at least 70 percent. 38 C.F.R. § 4.16 (a). In this regard, receipt of a 100 percent schedular rating for a service-connected disability does not necessarily render moot any pending claim for a TDIU. Bradley v. Peake, 22 Vet. App. 280, 293-294 (2008) (holding that a TDIU rating may still form the basis for assignment of special monthly compensation under 38 U.S.C. § 1114). Although no additional disability compensation may be paid when a total schedular disability is already in effect, Bradley recognizes that a separate award of a TDIU predicated on a single disability may form the basis for an award of special monthly compensation (“SMC”). As the Veteran is already in receipt of SMC for his heart condition, this will not be evaluated. Additionally, prior to that date, the Veteran was only service-connected for the PTSD. Initially, the Board notes that the Veteran retired in 2007. He worked primarily as a welder following his military career. The record indicated that the Veteran left school at 16 years old and he entered the job field prior to entering the military. He reported having no education outside of his welding career. July and August 2012 VA treatment records noted that the Veteran stated that he retired due to his heart condition. March 2013 VA treatment records noted an incident where the Veteran left a therapy group due to a black male joining the circle. He stated that he had an uncontrollable fear response and fled the session. The Veteran stated that there was a black female in the group but that he had not had as much of an issue with her as his fear was triggered mostly by black males as his in-service sexual assault had been perpetrated by black males. A VA psychology note from April 2016 included a section from the Veteran’s treatment provider. This treatment provider stated that, in his professional opinion, the Veteran was unemployable for mental health reasons. He found that the Veteran’s inability to tolerate new situations, accommodate people who do not agree with his perception, overly reactive angry outbursts before comprehending the whole situation, difficulty with persevering when the situation becomes challenging, rigidity, and pessimism would be problematic in maintaining employment. The treatment provider noted that the Veteran’s chronic health issues alone caused chronic mood instability and depression and that isolation and rumination over perceived slights and injustices were habitual for the Veteran. The Veteran underwent a VA examination in October 2015 to evaluate his PTSD. The examiner determined that the Veteran suffered from occupational and social impairment with deficiencies in most areas. The Veteran reported in this examination that following service he had difficulty interacting with black individuals and any family members who had relationships with black individuals. The Veteran reported that he took adult enrichment courses, but noted that he often dropped out due to PTSD symptoms, he was especially sensitive to the presence of too many people or the enrollment of a black individual in the course. He explained that he was unable to tolerate being around black people after being sexually assaulted in service by three black men. The Veteran reported that he retired in 2007, however, due to a physical health condition and not his mental health. He stated that he enjoyed the solitary nature of his welding occupation. In October 2018 VA treatment records the Veteran noted that his visceral reaction towards black individuals contributed to his inability to be around any people. March 2019 records noted that the Veteran was concerned about his continued inability to tolerate being near black individuals and even noted that he could not be around his daughter as she had married a black man. A June 2019 VA treatment record noted that the Veteran had lost several jobs due to the onboarding of African American employees. The Veteran stated that their presence triggered his PTSD. Further June 2019 records showed that the Veteran’s psychologist noted the Veteran’s symptoms of intense reactivities to reminder of his military sexual trauma and avoidance of trauma related stimuli. The psychologist noted that the Veteran could not watch black individuals on television without exhibiting a response. In December 2019 records the Veteran continued to report his inability to be around black individuals and deep shame regarding the military sexual trauma. The Veteran was provided with another VA examination in May 2019. The Veteran reported that he stopped working after a bypass surgery. The Veteran stated that he had no issues on the job related to his mental health. The Veteran was afforded a hearing in December 2019. The Veteran indicated that he was unable to work because he could not tolerate working with African Americans. He stated that he left his previous place of employment because an African American person had been hired and this caused him extreme anxiety. The Veteran also emphasized that his heart condition, which also interfered with his ability to work was directly attributable to the stress induced by his PTSD. In a September 2020 VA examination the examiner found that the Veteran has severe mental trauma due to the in-service sexual assault. The examiner noted that the Veteran could not be near a black individual and had severe social impairment due to anxiety. After consideration of the record, and resolving all reasonable doubt in favor of the Veteran, the Board finds the service-connected PTSD alone has been sufficiently disabling as to render the Veteran unable to maintain substantially gainful employment consistent with his education and occupational background. The Board recognizes the conflicting evidence of record, particularly that the Veteran was unable to continue employment due to his cardiovascular issues, not his PTSD alone. However, the September 2020 VA examiner determined that the stress induced by the Veteran's PTSD significantly affected, and most likely contributed to the Veteran’s cardiovascular health. Here, the Veteran's PTSD resulted in problems working with others, namely African American individuals, irritability, and inability to handle or adapt to work stress. The Veteran reported several times throughout the years that he was unable to tolerate any level of contact with certain individuals, even to the point where he could not handle viewing television programs starring black people. March 2013 VA records noted an incident where the Veteran could not attend a therapy group due to an anxiety response from a black man joining the group. The Veteran’s inability to cope with these symptoms within his personal life is indicative of his inability to manage the symptoms in a professional setting. A treatment note from April 2016 also indicated that the Veteran was unemployable due to his other mental health symptoms as well. He found that the Veteran’s inability to tolerate new situations, accommodate people who do not agree with his perception, overly reactive angry outbursts before comprehending the whole situation, difficulty with persevering when the situation becomes challenging, rigidity, and pessimism would be problematic in maintaining employment. These symptoms were observed by several different treatment providers and the Veteran displayed some of these symptoms during the hearing. Therefore, viewing the evidence as a whole, the Board finds that the evidence indicates the Veteran's service-connected PTSD prevents him from securing and maintaining gainful employment consistent with his educational background and employment history. Resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran's service-connected PTSD disability alone renders him unable to secure and follow a substantially gainful occupation. Therefore, entitlement to a TDIU due to PTSD is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board AK 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.