Citation Nr: 21010066 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 12-01 397 DATE: February 24, 2021 ORDER Entitlement to a TDIU on an extraschedular basis for the time period on appeal prior to April 5, 2011 is granted. FINDING OF FACT With consideration of the benefit of the doubt, the Veteran has been shown to be rendered unable to engage in substantially gainful employment as a result of PTSD prior to April 5, 2011. CONCLUSION OF LAW The criteria for entitlement to TDIU have been met for the appeal period prior to April 5, 2011. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1970 to November 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which continued a 30 percent rating for PTSD. In his August 7, 2008 increased rating claim for PTSD via a VA 21-4138, the Veteran stated that he was constructively discharged from his job in March 2006. This statement raised a claim for TDIU, which is under the Board’s jurisdiction as part and parcel of the increased rating claim for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). In November 2014, the Board remanded the PTSD and TDIU claims for further development. Thereafter in a March 2020 decision, the Board disposed of other issues, including a TDIU claim dismissed as moot from April 5, 2011 to July 31, 2019 and granted entitlement to a total disability rating based on individual employability due to service-connected disabilities (TDIU) from August 1, 2019. The Board then remanded the remaining issue of entitlement to TDIU for the appeal period prior to April 5, 2011 to allow for extraschedular consideration to include referral of these matters for an extraschedular opinion from the Director, Compensation and Pension Service. The requested development has been completed and this matter is returned to the Board for further consideration. 1. TDIU prior to April 5, 2011 The Veteran contends that he is entitled to TDIU on an extraschedular basis for the appeal period prior to April 5, 2011. In his increased rating claim for PTSD dated August 7, 2008 he described having been “constructively discharged” from employment in March 2006. In his January 2010 NOD he alleged that he was fired from the FAA due to an inability to cope with stressful circumstances at work. He went on to describe unlawful stressful circumstances and claimed he was in a hostile work environment. He reported experiencing the same stressors he had in Vietnam through exposure to the hostile work environment and the belief that he was being ordered into dangerous situations at work. He also described symptoms of poor attention span, issues with paranoia, mind racing and feeling that all is against him. He said that there are days he could not get out of bed. He was not comfortable in social situations. He described that his symptoms from PTSD resulted in him not using the internet, felt that his cell phone is under surveillance, didn’t join Veterans groups, and viewed everyone suspiciously. He cited chronic insomnia, with medicine to treat this causing daytime grogginess. He had almost no social interaction, and had not fished or played golf in over a year. Total disability is considered to exist when there is any impairment in mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (a)(1). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability, that is, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16 (a). If there is only one service-connected disability, it must be rated at 60 percent or more; if there are two or more service-connected disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Individual unemployability must be determined without regard to any non-service-connected disabilities or the veteran’s advancing age. 38 C.F.R. §§ 3.341 (a), 4.19 (2017); Van Hoose v. Brown, 4 Vet. App. 361 (1993). It is the policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of a service-connected disability shall be rated totally disabled, notwithstanding the fact that the assigned schedular ratings do not equal 60 percent for a single disability or 70 percent for a combined disability. 38 C.F.R. § 4.16 (b). Thus, if a Veteran fails to meet the rating enunciated in 38 C.F.R. § 4.16 (a), an extraschedular rating should be considered if the Veteran is unemployable due to a service-connected disability. Rating boards are required to submit to the Director, Compensation and Pension Service (Director), for extraschedular consideration, all cases of veterans who are unemployable by reason of service-connected disability(ies), but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16 (a), 38 C.F.R. § 4.16 (b). The Board further notes that the TDIU claim on appeal was filed in conjunction with an increased rating claim for PTSD on August 7, 2008. Generally, where a claim has not been filed within one year after separation from service, the effective date of a compensation award based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 ; 38 C.F.R. § 3.400. Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA’s adjudication regulations be filed on a standard form. The amendments also eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen under 38 C.F.R. § 3.157. See 79 Fed. Reg. 57,660 (Sept. 25, 2014) (now codified at 38 C.F.R. §§ 3.1 (p), 3.151, 3.155). The amendments apply only to claims filed on or after March 24, 2015. Because the Veteran’s claim was received by VA prior to that date, the amended regulations do not apply for effective date purposes, thus the Board must consider the regulations in effect prior to March 24, 2015 as provided below. For effective date purposes, a claim is a formal or informal written communication identifying and requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1 (p) (2016). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris, may be considered an informal claim. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year after the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (2014); Norris v. West, 12 Vet. App. 413, 421 (1999). A specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101 (a); 38 C.F.R. § 3.151 (a). The term “claim” or “application” means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1 (p). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). As in effect at the inception of this appeal, a report of examination or hospitalization meeting the requirements of this section will be accepted as an informal claim for benefits under an existing law or for benefits under a liberalizing law or Department of Veterans Affairs issue, if the report relates to a disability which may establish entitlement. 38 C.F.R. § 3.157 (a). Once a formal claim for pension or compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree, receipt of a report of examination or hospitalization by VA or uniformed services will be accepted as an informal claim for increased benefits or an informal claim to reopen. 38 C.F.R. § 3.157 (b). The provisions of this paragraph, 3.157(b)(1), apply only when such reports relate to examination or treatment of a disability for which service-connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission. Id. There is not shown to be a report of examination, treatment or hospital admission pertinent to this matter shown within one year of the claim filed on August 7, 2008. The Board notes that an original claim filed July 1, 2005 of service connection for a psychiatric disorder was adjudicated in a May 2006 rating decision that denied service connection for PTSD. Thereafter, a September 2007 correspondence requesting an update regarding the status of his PTSD claim was adjudicated in an April 2008 rating decision that granted service connection for a psychiatric disorder classified as anxiety disorder with a 30 percent rating assigned effective the date of the original claim of July 1, 2005. These adjudications were not appealed and the next communication alleging increased rating for PTSD with TDIU alleged was received on August 7, 2008. Thus, the matter currently on appeal is shown to be in effect from the August 7, 2008 claim for an increased rating. Prior to April 5, 2011, the Veteran’s combined disability rating did not meet the schedular requirements for a TDIU under 38 C.F.R. § 4.16(a). For the appeal period beginning in August 7, 2008, the Veteran is service-connected for the following compensable rated (more than 0%) disabilities PTSD (30 percent), diabetes mellitus (10 percent) and tinnitus (10 percent), but the overall combined rating is 40 percent. Beginning January 28, 2009, the Veteran is compensable rated for PTSD (50 percent), diabetes mellitus (10 percent) and tinnitus (10 percent), but the overall combined rating is 60 percent; and beginning November 2010, the Veteran’s PTSD (50 percent), diabetes mellitus (20 percent) and tinnitus (10 percent), only have an overall combined rating of 60 percent. The Veteran is noted to have a high school education with 2 years of college and worked as an engineering technician with the same employer from November 1975 to March 2006, with additional training on equipment, including engine generators, air conditioners and runway lighting, high voltage electricity and power conditioning systems. While he was still employed, the Veteran underwent a VA examination in October 2005 to address his PTSD symptoms with complaints of poor sleep and concentration but no nightmares. He reported intrusive thoughts every week or so; he had a depressed mood with feelings of decreased interest, motivation, and variable appetite. He reported being stressed and angry over work issues. Although he reported stress requiring treatment due to workplace difficulty with ongoing litigation over alleged discrimination, he remained fully employed with hopes to retire by December 2005. A March 2006 Application for Immediate Retirement from Civil Service described the Veteran as reporting he was retiring “under duress.” A March 2006 letter submitted from the Veteran’s private psychiatrist in support of a Workers Compensation claim described the Veteran as having the same symptoms in January 2006 as he did back when treated by this same provider back in May 2001, including decreased mood, hopelessness, decreased sleep, loss of interests, feelings of guilt, poor energy, and difficulty with concentration. He also reported increased anxiety, nightmares, avoidances, hypervigilance. in January 2006 he returned to Dr. R.J. due to the increased pressure at work due to a hostile work environment and she stated he exhibited similar symptoms from 2001, and diagnosed him with major depressive disorder and PTSD. The Veteran continued to suffer from extreme severe depressive symptoms and feelings of hopelessness and was unable to maintain his concentration for more than short intervals of time and experienced other neurovegetative symptoms. He was noted to be beginning to respond to medication and therapy and stabilized somewhat but unable to resume his past level of functioning. The March 2006 psychiatrist stated that due to the length of time he attempted to manage an extremely hostile work environment, the prognosis for recovery was fair at best. He had difficulty managing even slight stressors and did not show improvement to warrant returning to his former line of work; she stated he was psychologically fragile. Although he was able to maintain some interactions with family and close friends, this was limited due to his emotional state, as he was easily shaken and prone to deep depressions with excessive ruminating thoughts. His psychiatrist stated that he was unable to concentrate and focus on his thoughts in order to perform any work activity appropriately, and “he is definitely unable to return to his former line of work.” The psychiatrist indicated that although he attempted to maintain a consistent work ethic in the past, this would not be possible should the hostile work environment continue. She further opined that “the Veteran continues to decompensate under even minimal stressors. It would be detrimental to expect him to maintain any type of work activity at all in his present condition.” She further stated it was doubtful the Veteran could appropriately manage any type of employment, and that he should avoid stressful situations and any other type of occupational or social intense interactions. The report of a January 2009 VA QTC psychiatry examination disclosed complaints of recurrent and intrusive thoughts and nightmares of life threatening combat situations experienced while in Vietnam where friends were killed or severely wounded. He has pervasive anxiety, obsessive-compulsive features, hypervigilance, insomnia, hyperarousal with increased startle reflex, irritability and anger, to include filing multiple lawsuits against his employer alleging discrimination in its hiring, assignment and other employment policies, impaired concentration, and avoidance of situations that remind him of combat. His symptoms have worsened since he was reportedly fired or “constructively discharged” from his employer in March 2006 and was instructed to cease and desist with filing lawsuits against them. The examiner stated the content and context of his discussion of these lawsuits “clearly indicate that he is very familiar with presenting arguments to a reasonable, logical, and well documented manner.” On examination, the Veteran was well nourished and developed, able to maintain personal hygiene, and was neatly groomed; pleasant and cooperative, presents his history logically and coherently; he was alert and fully oriented to person, place, time, and situation; he spoke in normal tone though speech was over productive. His affect was somewhat constricted but appropriate to his moderately depressed mood. He denied hallucinations, delusions, suicidal or homicidal ideation. His immediate and remote memory were intact though recent memory has some difficulty. There was no objective evidence of inappropriate, ritualistic or obsessive behaviors. The examiner diagnosed him with PTSD with depressive and obsessive compulsive (OCD) features chronic and worsening manifested by the symptoms as described above. The current GAF for his PTSD symptoms was 40. The examiner stated that his prognosis was poor at best based on duration and chronicity of PTSD as well as associated depressive and OCD features. In discussing his competency, his cognitive skills were adequate to administer his own financial affairs, to include appropriate use of financial benefit. He was able to understand and participate in these proceedings as well as understand the meaning of filing for benefits. He was mentally capable of performing activities of daily living but was found by this examiner to be no longer able to establish effective work or social relationships. He was able to understand simple and complex commands as well as retain and implement them. He has never been suicidal and was not considered a danger to either himself or others. Records from the appeal period to April 5, 2011 show the Veteran to have a positive PTSD screen in November 2010, with a history of PTSD previously in counseling and on medications but did not think the medications helped and stopped, and he denied suicidal or homicidal ideations or attempts but with no findings regarding the impacts on his ability to work. . In the September 2020 VA Memorandum to the Director of Compensation Services to address the extraschedular claim, it was recommended that entitlement to TDIU on extra-schedular basis be denied because the preponderance of the evidence fails to show that the Veteran’s service connected conditions result in his being unable to obtain or maintain gainful employment. In this memorandum it was stated that the January 2009 VA examination did not show that the Veteran was unable to obtain or maintain gainful employment citing to job stressors specific to the previous employer which did not support an inability to work for a different employer. Likewise, the March 2006 letter from the private psychiatrist was said to base the Veteran’s inability to work on his current workplace stressors of a hostile work environment. The stressor of the claimed hostile work environment is not something that would preclude him from obtaining employment with a different employer. The report of a November 2020 VA extraschedular opinion from the Director of Compensation discussed the combined service-connected ratings in effect after April 5, 2011, but not prior to this date, which is the matter currently remaining on appeal. Indeed, the prior Board decision of March 2019 dismissed as moot the issue of entitlement to TDIU from April 5, 2011to July 31, 2019 and granted TDIU from August 1, 2019. Regarding the impact of his service-connected disability on his ability to obtain and maintain employment, the Director noted the Veteran was last employed as an engineering technician before retiring in March 2006. The Veteran completed high school and has 2 years of college education. The Veteran reported his PTSD and prostate cancer prevents him from securing or following any substantially gainful occupation. The medical evidence shows that the veteran reported working in a hostile work environment and what he considered an unfair work practice by his employer. It was noted that this stressor would not preclude employment with a different employer. The Director pointed out that the Rating Schedule is generally assumed to adequately compensate for loss of earning capacity. For an extraschedular grant of TDIU, the majority of the evidence should clearly support that the service-connected disability(ies) are by themselves the cause of the Veteran’s inability to obtain and maintain gainful employment. In this case, after giving consideration to all relevant evidence; including, but not limited to the Veteran’s education, training, and work history, the Director of Compensation Service determined the overall evidence fails to support the contention that any of the service-connected disabilities or a combination of the effects of those disabilities support an exceptional situation that prevented gainful employment prior to August 1, 2019. 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. Wages v. McDonald, 27 Vet. App. 233, 236-38 (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) during a portion of the claim period 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 v. Shinseki, 22 Vet. App. 423, 427 (2009) (“[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”). After careful consideration of the entire record, the Board must disagree with the Director’s decision. In this case, the evidence is in equipoise as to whether, prior to April 5, 2011, the Veteran was unable to obtain and maintain substantially gainful employment consistent with his education and occupational experience because of his service-connected PTSD. The Board must address the impact of this PTSD on his ability to obtain and maintain employment, with consideration of 38 C.F.R. § 4.16 (a) (applicable in this instance where the schedular criteria for TDIU is not shown); VanHoose v. Brown, 4 Vet. App. 361 (1993). For a veteran to prevail on a claim for a total disability evaluation based on individual unemployability due to service -connected disorders, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question for the Board is whether a veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. See 38 C.F.R. § 4.16 (a); VanHoose v. Brown, 4 Vet. App. 361 (1993). On review, the Board lends the greatest weight to the findings from the January 2009 VA QTC examination, in which the examiner determined the Veteran to be no longer able to establish effective work or social relationships based on PTSD symptoms, which the examiner also noted had worsened since he was terminated from employment in 2006. This same examiner also described his prognosis as poor at best based on duration and chronicity of PTSD as well as associated depressive and OCD features. In providing this opinion describing the Veteran to be no longer able to be effective in work relationships, the examiner pointed to the Veteran’s multiple PTSD symptoms, including pervasive anxiety, obsessive-compulsive features, hypervigilance, insomnia, hyperarousal with increased startle reflex, irritability and anger, with the examiner significantly noting that the anger manifested to include his filing multiple lawsuits against his employer. This examiner essentially implicates the PTSD symptoms of anger as driving the Veteran’s litigious behaviors against his former employer and increased work stress. This January 2009 VA examination was conducted more than 3 years after he stopped working in a hostile work environment and 3 years after the opinion was given in the March 2006 Workers Compensation opinion determining it would be detrimental to expect him to maintain any type of work activity at all in his present condition, and suggested that his symptoms may have been impacted by the hostile work environment he had been involved in at the time. Thus, it appears that his PTSD symptoms continue to unfavorably impact his ability to obtain and maintain any sort of employment despite being removed from the hostile work environment for a number of years. Further, the Veteran’s own lay statements in his January 2010 NOD suggests that his symptoms including poor attention span, and issues with paranoia to the extent that he felt like he was under surveillance, would negatively impact his ability to work in other employment situations besides his former place of employment prior to April 5, 2011. In this regard, the Board notes that the basis for the Director’s unfavorable opinion was that the Veteran’s stressors of a claimed hostile work environment is not something that would preclude him from working elsewhere. However, such opinion did not consider the symptoms discussed in the January 2009 VA examination and their impact on his employability, including the symptoms such as anger, which the examiner appears to suggest was a driving factor in the Veteran’s work conflicts leading to multiple lawsuits. Nor did the Director consider the Veteran’s own lay evidence describing symptoms that included issues with concentration and severe paranoia which would unfavorably impact his employability in any occupation. In summary, the Board finds that with application of reasonable doubt and review of the evidence overall including lay and medical evidence, the disability picture pertaining to the Veteran’s PTSD precludes substantially gainful employment such that TDIU on an extraschedular basis is warranted for the appeal period prior to April 5, 2011. As this has already been considered in the first instance by the Director, the Board has jurisdiction to render this award at present. 38 C.F.R. § 4.16. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Carol Eckart 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.