Citation Nr: 21009880 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 19-37 738 DATE: February 23, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDINGS OF FACT 1. The Veteran is service-connected for only one disability by VA: unspecified depressive disorder, rated as 50 percent disabling; thus, the Veteran does not meet the schedular criteria for a TDIU. 2. The Veteran’s service-connected unspecified depressive disorder does not, alone, preclude him from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU due to service-connected unspecified depressive disorder are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.1, 4.3, 4.16(b), 4.19, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 1966 to August 1968. This matter initially came before the Board of Veterans’ Appeals (Board) from a June 2016 rating decision, in which the agency of original jurisdiction (AOJ) awarded service connection for unspecified depressive disorder and assigned an initial 10 percent disability rating, from February 3, 2016. In a September 2020 Board decision, the Board awarded an initial disability rating of 50 percent, but no higher, for unspecified depressive disorder before December 8, 2016. The Board denied entitlement to an initial disability rating for unspecified depressive disorder in excess of 50 percent after that date, finding that a 50 percent rating was appropriate for the entire period on appeal. During the claim period, the Veteran submitted a formal application for a TDIU wherein he indicated that his service-connected unspecified depressive disorder precluded employability. Therefore, in the September 2020 decision, the Board expanded the appeal to include the inferred issue of entitlement to a TDIU, as part and parcel of the appeal for a higher initial rating for unspecified depressive disorder. See Rice v. Shinseki, 22 Vet. App. 447 (2009); see also Harper v. Shinseki, 30 Vet. App. 356 (2018). As the Veteran’s unspecified depressive disorder was rated as 50 percent disabling, he did not meet the schedular requirements for a TDIU under 38 C.F.R. § 4.16(a). However, in a May 2020 statement supporting his claim, he expressly raised the issue of extraschedular consideration and asserted that he could not work due to his service-connected unspecified depressive disorder. The Board found that the evidence raised a reasonable possibility that he was unemployable due to a service-connected disability and remanded the TDIU claim for referral to VA’s Director of Compensation Service (Director) for extraschedular consideration. See September 2020 Board decision. Anderson v. Shinseki, 22 Vet. App. 423, 428-29 (2009) (The Board cannot assign an extraschedular TDIU evaluation in the first instance under § 4.16(b) and the Board’s analysis is limited to merely granting or denying the Veteran’s request for referral for extraschedular consideration). An Advisory Opinion was received from the Executive Director of Compensation Service (Executive Director) in November 2020. The Executive Director determined that the evidence did not show that the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected unspecified depressive disorder. The Board points out that although it 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 of that determination. The Board conducts a de novo review of the Director’s decision denying extraschedular consideration under 38 C.F.R. § 4.16 (b) and the Director’s decision is in essence the decision of the AOJ and not evidence. Wages v. McDonald, 27 Vet. App. 233, 236-39 (2015) (citing 38 U.S.C. §§ 511 (a), 7104(a); 38 C.F.R. § 4.16 (b)). In this case, the issue of entitlement to an extraschedular TDIU pursuant to 38 C.F.R. § 4.16 (b) has already been referred to the Director and the Director has issued a decision. Therefore, the TDIU issue is now before the Board and can be addressed on the merits. Cf. Anderson, 22 Vet. App. at 427 (“[T]here is no restriction on the Board’s ability to review the denial of an extraschedular rating [under 38 C.F.R. § 3.321 (b)(1)] on appeal”). If the Board decides to deny entitlement to an extraschedular TDIU evaluation under § 4.16(b) after a referral to the Director has occurred, the Board “must provide adequate reasons or basis for deviating from its earlier referral decision.” Ray v. Wilkie, 31 Vet. App. 58, 62 (2019). In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence of record, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board must resolve reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Total disability means that there is present any impairment of mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.15. A substantially gainful occupation has been defined as “an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran’s earned annual income.” Faust v. West, 13 Vet. App. 342 (2000). When jobs are not realistically within his or her physical and mental capabilities, a veteran is determined unable to engage in a substantially gainful occupation. Moore v. Derwinski, 1 Vet. App. 356 (1991) (citing Timmerman v. Weinberger, 510 F.2d 439 (8th Cir. 1975)). In making this determination, consideration may be given to factors such as the veteran’s level of education, special training, and previous work experience, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A veteran is totally disabled if his or her service-connected disability or combination of service-connected disabilities is rated at 100 percent pursuant to the Schedule for Rating Disabilities. 38 C.F.R. § 3.340(a)(2). Even if a veteran is less than 100 percent disabled, he or she still is deemed totally disabled under the Schedule for Rating Disabilities if two requirements are satisfied. 38 C.F.R. § 4.16(a). First, the veteran must meet a minimum percent evaluation. If he or she has one service-connected disability, it must be evaluated at 60 percent or more. If he or she has two or more service-connected disabilities, at least one disability must be evaluated at 40 percent or more and the combined evaluation of all the disabilities must be 70 percent or more. The following will be considered as one disability with respect to the minimum percent evaluation: (1) disabilities of one or both upper extremities or of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from a common etiology or a single accident; (3) disabilities affecting a single body system (e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric); (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. Second, the veteran must be found to be unable to secure and follow a substantially gainful occupation as a result of his or her service-connected disability or disabilities. Id. Where a veteran does not meet the percentage evaluation requirements under 4.16(a), he or she still may be deemed totally disabled on an extraschedular basis under 38 C.F.R. § 4.16(b) when the evidence nonetheless indicates that the veteran is unemployable by reason of his or her service-connected disabilities. Extraschedular TDIU consideration requires contemplation of the following factors: the severity of the veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). In Ray v. Wilkie, 31 Vet. App. 58 (2019), United States Court of Appeals for Veteran’s Claims (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 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. The Veteran is service connected for unspecified depressive disorder with a 50 percent evaluation from February 3, 2016, the date of the claim. Therefore, the Veteran does not meet the percentage requirements for consideration of a TDIU on a schedular basis. 38 C.F.R. § 4.16(a). To the extent the referral for an extraschedular TDIU by the Board in its remand was an initial finding, a remand by the Board is a preliminary order and does not constitute a final decision of the Board. Thus, the Board’s findings in the September 2020 remand are not binding on the matter of entitlement to an extraschedular TDIU. 38 C.F.R. § 20.1100(b); cf. Oct. 2017 Vet. App. Mem. Dec., No. 16-2137, at 5 (indicating the Board implicitly determined that the Veteran’s disability picture sufficiently required referral for extraschedular consideration). Regardless, the Board may now review the Director’s determination that entitlement to a TDIU on an extraschedular basis was not warranted and make an independent determination on this matter. See Anderson, 22 Vet. App. at 427. Generally, the degrees of disabilities specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. See 38 C.F.R. §§ 4.1, 4.15. In other words, the disability rating, itself, is recognition that industrial capabilities are impaired. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Consequently, the record must reflect some factor that takes a particular case outside the norm in order for a claim for individual unemployability benefits to prevail. As the Court further explained in Van Hoose, the mere fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether he can perform the physical and mental acts required by employment, not whether he can find employment. Here, after reviewing the evidence and prior medical examinations of record, the Board finds that the preponderance of the evidence is against any notion that he is or has been unable to secure or follow substantially gainful employment solely owing to his service-connected unspecified depressive disorder. The Veteran has completed no more than 1 year of college and last worked for a sawmill company and a school board. A VA Form 21-4192 received in April 2020 reveals that he resigned from the school board in June 1981. The reason for the termination of employment was not provided. In the September 2020 Board decision finding that a 50 percent evaluation, but no greater, was warranted for his unspecified depressive disorder during the entire period on appeal, it was noted that socially, the Veteran can establish and maintain effective relationships. He has been married to his current spouse for almost 50 years. During a March 2018 psychological evaluation, the Veteran’s healthcare provider noted that he had good relations with his spouse and other family. Outside his family, he stays in touch with some of his friends, but not many. Review of the record reveals no evidence of impaired impulse control (such as unprovoked irritability and periods of violence). The record does not indicate that the Veteran engages in “road rage,” has been in physical altercations, or broken things out of anger, and the clinical treatment records similarly do not indicate that impaired impulse control is present. At the latest VA examination in March 2020, the Veteran reported that he used to have an anger problem if someone “messed” with his family or friends, but now, he is no longer easily angered. He also denied acting out in aggression. During the March 2020 VA examination, the Veteran himself denied acting out in aggression, suggesting that his impulse control is not impaired. Also, while the Veteran’s disability may make it difficult for him to make and maintain relationships, he has good relations with his spouse, and has a few friends. Finally, at an earlier examination, the Veteran reported that he was depressed most days, but not all the time and that his depression “comes an[d] goes.” The Board acknowledges that the Veteran has expressed suicidal ideation. However, the severity, frequency, and duration of the Veteran’s suicidal ideation has not risen to the level contemplated by the 100 percent disability rating—persistent danger of hurting self or others. A typical psychiatry note in his VA treatment records reads: “chronic[,]passive suicidal thoughts,” such as wishing he were dead, but with “no plan or intent” to harm himself. While he reported having these thoughts “all the time,” he regularly denied intent, or a plan involving self-harm in existing treatment records throughout the appeal period, and at all three of his VA examinations. Routine mental status examinations regularly found the Veteran’s judgment intact, his thought process logical, linear, and goal oriented and his insight fair. The Veteran has not worked for decades and maintains that his service-connected psychiatric disability caused his unemployment. The Veteran’s occupational impairment throughout the claim period is best described by the March 2020 VA examination. Asked how the Veteran’s disability would impact him at work, the examiner opined that his depressed mood and anxiety would make it difficult for him to work in a stressful environment. Those two symptoms, coupled with his lack of motivation, would likely negatively affect his productivity and attendance. The examiner noted that the Veteran would struggle with work that required prolonged concentration and need reminders to remember to complete tasks. A review of the Veteran’s VA treatment records shows he underwent a Repeatable Battery for the Assessment of Neuropsychological Status (RBANS) in March 2018. That, too, found that the Veteran’s most noticeable deficit was his attention and that his capacity to remember and manipulate visually- and orally-presented information is impaired. The Veteran’s Social Security Administration (SSA) records are not part of the claims file. VA attempted to obtain them, but SSA advised that they had been destroyed. The Director determined that the overall evidence failed to support the contention that the Veteran’s service-connected unspecified depressive disorder prevents employment. The Director explained that while the disability would cause some functional impairments, the evidence does not show that it is totally disabling. There is no evidence of gross impairment to thought process or memory, delusional thinking, hallucinations or lack of impulse control representing a psychological disability resulting in total functional impairment. The evidence does not show the Veteran would be unable to follow a substantially gainful occupation as a result of the service-connected disability. See November 2020 advisory opinion. The Board finds that the evidence of record is consistent with the Director’s determination. Indeed, while the Veteran’s private and VA treatment records reflect ongoing treatment for his service-connected unspecified depressive disorder, such records do not contain evidence of impairment so significant to interfere with attendance for or performance of work. The lack of evidence showing significant treatment or findings that would preclude gainful employment undermines the Veteran’s contention that he is unemployable due to solely to his service-connected psychiatric disability Indeed, recent VA treatment records indicate that although the Veteran continues to report passive suicidal thoughts and his mood is described as “anxious,” his mental status examinations are otherwise within normal limits. He denies current suicidal/homicidal intent or plan. He is consistently described as pleasant, calm and cooperative; his speech is normal; his thought process is logical, linear and goal-directed; thought content is normal; he does not suffer from any audio or visual hallucinations; his insight and judgment are fair; his memory is only occasionally mildly impaired; attention and concentration are deemed to be adequate; and he is alert and fully oriented to person, place, time and situation. He reports his sleep is fair and denies lack of appetite. He reports increased anxiety related to the Covid-19 pandemic but “continues to stay busy.” His treating psychologist noted that, “It has been clear with working with him that he is most at ease when doing tasks that demand his full attention.” See April 2020, July-August 2020 VA treatment records. The Board recognizes that the Veteran is in receipt of a disability rating of 50 percent. Generally, the degrees of disability are considered adequate to compensate for considerable loss of working time from exacerbations or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. There is no unusual or exceptional disability pattern that has been demonstrated which would render application of the regular rating criteria as impractical. The evidentiary record does not demonstrate that the symptomatology consistently associated with the service-connected unspecified depressive disorder is not wholly contemplated by the criteria utilized to assign prior evaluations. As noted above, the unspecified depressive disorder is best described as occupational and social impairment with reduced reliability and productivity due to such symptoms–the requirements for a 50 percent evaluation. The effect on employability by the service-connected disability is contemplated by the regular schedular rating criteria. Given the lack of evidence demonstrating total occupational impairment as a result of service-connected disability described above, the Board finds little to indicate that the Veteran is unable to secure or follow substantially gainful employment consistent with his eduction and occupational experience due solely to his service-connected psychiatric disability. The Board therefore determines that the Veteran was not disabled to a greater degree than his 50 percent disability rating would have otherwise suggested. Thus, it finds that this evaluation provides adequate compensation for his service-connected disability. In conclusion, the Board finds that the weight of the evidence does not show that the Veteran is unable to secure or follow substantially gainful employment due to the effects of his service-connected unspecified depressive disorder, alone. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. Gilbert, 1 Vet. App. 49. Accordingly, entitlement to a TDIU on an extraschedular basis is not warranted. Brian J. Elwood Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D.S. Chilcote, 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.