Citation Nr: 21009933 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 11-17 205 DATE: February 23, 2021 ORDER A total disability rating based on individual unemployability (TDIU) is granted, effective February 7, 2016. VETERAN’S CONTENTIONS The Veteran contends that he is unable to obtain or maintain gainful employment due to his service-connected disabilities. FINDING OF FACT Since February 7, 2016, the Veteran has been unable to obtain or maintain gainful employment due to his service-connected disabilities. CONCLUSION OF LAW The criteria for a TDIU are met effective February 7, 2016. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16(b), 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1966 to September 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. Jurisdiction is currently with the RO in Reno, Nevada. The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) via videoconference in September 2017 and a transcript of the hearing has been associated with the claims file. These matters were previously before the Board at which times they were remanded for further development. Entitlement to a total disability rating based on individual unemployability (TDIU) A TDIU is granted where a veteran's service-connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16. VA will grant a 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. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU benefits are 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 TDIU benefits; 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). A veteran need not show 100 percent unemployability in order to be entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). Marginal employment defined as when a veteran's earned annual income does not exceed the poverty threshold for one person, or on a facts found basis (e.g., when employment is in a protected environment such as a family business or sheltered workshop) shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). In determining whether an appellant is entitled to a total disability rating based upon individual unemployability, neither the appellant's nonservice-connected disabilities nor advancing age may be considered. 38 C.F.R. §§ 3.341 (a), 4.19. Factors to be considered are the Veteran's education, employment history, and vocational attainment. See Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). At the outset, the Board notes that service connection has been established for posttraumatic stress disorder, to include unspecified depressive disorder (rated as 50 percent disabling); bilateral hearing loss (rated as 20 percent disabling); and tinnitus (rated as 10 percent disabling). The Veteran does not have one disability rated at least 60 percent disabling; or two or more disabilities, with 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). Thus, the Veteran does not meet the threshold schedular requirement for an award of TDIU benefits under 38 C.F.R. § 4.16(a). However, it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities are to be rated totally disabled. 38 C.F.R. § 4.16(b). Therefore, rating boards should submit to the Director of Compensation Service for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the TDIU threshold percentage standards. Id. In response to an October 2020 Board remand, the RO referred the case to the Director of VA’s Compensation Service for extraschedular consideration of a TDIU in October 2020. As this step has been completed, the Board may address whether an extraschedular TDIU is warranted. See Wages v. McDonald, 27 Vet. App. 233, 236 (2015). After reviewing the evidence of record, the Board finds that the Veteran is unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities. In this regard, the record reflects that the Veteran completed two years of high school education. Since service, the Veteran reported primary employment working as a welder/fabricator. Regarding his current ability to obtain and maintain substantially gainful employment, the evidence of record includes a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, in which the Veteran indicated that he last worked full-time on February 6, 2016 and became too disabled to work on February 7, 2016. The evidence of record also includes multiple lay statements from the Veteran indicating that his service-connected disabilities prevented him from obtaining and maintaining substantially gainful employment. Turning to the medical evidence of record, a November 2016 VA examiner opined that the Veteran’s hearing loss and tinnitus impacted the ordinary conditions of daily life, including the ability to work, in that the Veteran had difficulty hearing and understanding conversations, especially in noisy environments. An August 2018 VA examiner opined that the Veteran’s hearing loss and tinnitus impacted the ordinary conditions of daily life, including the ability to work in that the Veteran had difficulty with conversations; specifically, he had difficulty hearing, conversations were not clear, and he had difficulty understanding/misunderstands what was said. A November 2016 VA examiner opined that the best description of the Veteran’s service-connected psychiatric impairment was occupational and social impairment with reduced reliability and productivity. The examiner indicated that symptoms related to the Veteran’s service-connected psychiatric impairment included depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; flattened affect; difficulty in understanding complex commands; and disturbances of motivation and mood. The examiner further indicated that the Veteran would have difficulty in establishing and maintaining effective work and social relationships. In January 2017 a VA clinician noted symptoms including increased intrusive memories of war, irritability/anger, hypervigilance, exaggerated startle response, and broken sleep. The clinician characterized the Veteran’s PTSD as severe and permanently disabling. The clinician further opined that the Veteran’s PTSD caused unemployability. An August 2018 VA examiner opined that the best description of the Veteran’s service-connected psychiatric impairment was occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. The examiner indicated that symptoms related to the Veteran’s service-connected psychiatric impairment included depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; circumstantial, circumlocutory or stereotyped speech; difficulty in understanding complex commands; impaired judgement; impaired abstract thinking and disturbances of motivation and mood. The examiner further indicated that the Veteran would have difficulty establishing and maintaining effective work and social relationships and difficulty adapting to stressful circumstances, including work or a work-like setting. A November 2019 VA examiner opined that the best description of the Veteran’s service-connected psychiatric impairment was occupational and social impairment with reduced reliability and productivity. The examiner indicated that symptoms related to the Veteran’s service-connected psychiatric impairment included depressed mood; anxiety; chronic sleep impairment; and disturbances of motivation and mood. The examiner further indicated that the Veteran would have difficulty establishing and maintaining effective work and social relationships and difficulty adapting to stressful circumstances, including work or a work-like setting. After reviewing the evidence of record and resolving all doubt in the Veteran's favor, the Board finds that the Veteran is unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities, effective February 6, 2016. See Gilbert, 1 Vet. App. 54. See also 38 U.S.C. § 5107. In making this determination, the Board has considered the Veteran's level of education and his primary employment history of working as a welder/fabricator, and considers the findings of the various VA examiners to be particularly probative, insofar as they determined that the Veteran’s service-connected psychiatric conditions make it difficult for the Veteran to establish and maintain effective work and social relationships and make it difficult to adapt to stressful circumstances, including work or a work-like setting. The Board acknowledges that the Director of Compensation Service issued a December 2020 memorandum that weighed against the Veteran's claim for extra-schedular under 38 C.F.R. § 4.16(b). However, although the Director's decision is important in that it allows the Board to consider entitlement to an extraschedular TDIU in this decision, it is not binding. 38 C.F.R. § 4.16; Wages, 27 Vet. App. at 233 (The Board is authorized to award extraschedular TDIU after obtaining the Director's decision. The Board is not bound by Director's decision in deciding whether to award TDIU). The Board also acknowledges that the evidence of record indicates that the Veteran owned a business which was operating after February 6, 2016. However, it is apparent that the Veteran did not/does not handle the day to day activities of the business. See August 2020 Posttraumatic Stress Disorder VA Examination Report. Therefore, affording the benefit of the doubt to the Veteran, the Board finds that his employment post-February 6, 2016 constituted marginal employment (the equivalent of employment in a protected environment), and, thus, not gainful employment. See 38 C.F.R. § 4.16(a). Comparatively, as the Veteran was gainfully employed prior to February 7, 2016, a TDIU is not warranted prior to that date. S.C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Smith-Jennings, 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.