Citation Nr: 21010265 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 18-29 683 DATE: February 24, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability as due to service-connected disabilities (TDIU) prior to January 26, 2016 is denied. Entitlement to TDIU from January 26, 2016 until September 6, 2018 is granted. FINDING OF FACT The weight of the evidence fails to establish that the Veteran was unable to secure or follow substantially gainful employment due solely to service-connected disability prior to January 26, 2016, but his service-connected PTSD did preclude him from substantially gainful employment as of that date. CONCLUSIONS OF LAW 1. The criteria for entitlement to TDIU prior to January 26, 2016 have not been met.  38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16. 2. The criteria for entitlement to TDIU from January 26, 2016 until September 6, 2018 have been met.  38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from June 1964 to June 1967. This matter was last before the Board in October 2020, whereupon it was remanded back to the Agency of Original Jurisdiction (AOJ) for further development of the record. Following the issuance of an October 2020 supplemental statement of the case, this matter was returned to the Board for its adjudication. The Board is cognizant that the Veteran’s separate appeal of his claim seeking an increased rating for his service-connected posttraumatic stress disorder (PTSD) was recently remanded from the United States Court of Appeals for Veterans Claims (Court) back to the Board. Although it is acknowledged that adjudication of this separate appeal may further impact the extant claim of entitlement to an earlier effective date for the grant of TDIU, the Board notes that it does not currently have jurisdiction over this separate appeal as it awaits mandate from the Court and cannot merge the appeals at the current time. Accordingly, the Board will proceed with its adjudication of the TDIU earlier effective date claim in recognition that the issue of TDIU may be revisited in a later decision in tandem with the increased rating claim, per Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran is currently in receipt of a total disability rating for PTSD effective September 6, 2018. Accordingly, the issue of entitlement to TDIU from that date is moot. Furthermore, as the Veteran is not service-connected for separate disabilities, the question of whether he is entitled to special monthly compensation is not raised by the record. Bradley v. Peake, 22 Vet. App. 280 (2008). The question that remains is whether he is entitled to TDIU prior to September 6, 2018. To that end, the Board notes that the TDIU claim was initially raised as part and parcel to the separate claim seeking and increased rating for PTSD received by VA on July 17, 2014. Rice v. Shinseki, supra. As such, the relevant period on appeal extends back to July 17, 2013, which is the date of the underlying PTSD increased rating claim extended further back by one year. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). TDIU may be assigned when the combined schedular rating for the claimant’s service-connected disabilities is less than 100 percent, and when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age, provided that, if there is only one such disability, this disability is ratable at 60 percent or more, or, if there are two or more disabilities, there is at least one disability ratable at 40 percent or more and additional disabilities sufficient to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16. The Veteran’s service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The relevant issue is not whether the veteran is unemployed or has difficulty obtaining employment, but whether the veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. During the appeal period, the Veteran was in receipt of a 50 percent rating for PTSD prior to January 26, 2016, at which point he was awarded an increased 70 percent rating. Therefore, prior to January 26, 2016, the Veteran did not meet the schedular requirements for entitlement to PTSD; however, he may still be entitled to referral for consideration of an extraschedular grant of TDIU if the evidence shows that he is unable to secure or follow a substantially gainful occupation as a result of his or her service-connected disability or disabilities. 38 C.F.R. § 4.16(b). Where the percentage requirements for TDIU are not met, a total disability rating may nevertheless be assigned on an extraschedular basis when the veteran is unable to secure or follow a substantially gainful occupation as a result of his or her service-connected disability or disabilities. 38 C.F.R. § 4.16(b). The Board is precluded from assigning a TDIU rating on an extraschedular basis in the first instance. Instead, the Board must refer any claim that meets the criteria for referral for consideration of entitlement to TDIU on an extraschedular basis to the Director of Compensation and Pension Service. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Of course, the Veteran did meet the requirements for a schedular assignment of TDIU from January 26, 2016. In any event, the operative question for the evaluation of this TDIU claim is whether the Veteran’s PTSD alone rendered him unable to secure or follow a substantially gainful occupation at any point during the relevant appeal period, that is, from July 17, 2013 to September 6, 2018. To begin, the Board notes that the Court recently promulgated additional guidance to assist in the evaluation of claims for TDIU in Ray v. Wilkie, 31 Vet. App. 58, 71 (2019). The Court stated that: “[W]e interpret the phrase “unable to secure and follow a substantially gainful occupation” in [38 C.F.R.] § 4.16(b) to have two components: one economic and one noneconomic. The economic component simply 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. As for the noneconomic component, the Secretary himself states that ‘determining eligibility for TDIU requires more than determining the presence or absence of employment producing income exceeding any particular threshold,’ and ‘the ultimate inquiry is instead on the individual claimant’s ability to secure or follow that type of employment’.” Factors for consideration in evaluating the noneconomic component are: (1) the veteran’s history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue, with possibly relevant factors including, but not limited to, the limitations, if any, concerning memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity. Id. With regards to the economic component of the Ray analysis, in the Veteran’s formal application for entitlement to TDIU dated in May 2019, he indicated that his PTSD precluded him from securing and following substantially gainful employment. He also reported that his PTSD first affected his full-time employment in December 2002 and that he last worked full time in March 2003. There is no documentation of where the Veteran was employed or what type of employment it was. That said, the Board has no basis to question the Veteran’s credible description of his employment history, insofar as the noted period on appeal is affected. Regarding the noneconomic component defined in Ray, the Board again highlights that the Veteran has not presented any evidence regarding his history of employment, education, skill or training other than the May 2019 TDIU application. On that application he indicated that he completed high school and did not list any additional education or training. Again, the Board does not question this description. In a July 2014 statement, a G.R. and a M.R., who indicated that they were friends of the Veteran, reported that they witnessed the Veteran experiencing nightmares and injuring himself during the night while sleeping. Similarly, his spouse in a July 2014 statement also reported that the Veteran had experienced significant difficulty sleeping soundly for many years and she also detailed witnessing him injuring himself at night. During the appeal period, the Veteran was afforded a VA PTSD examination to evaluate the nature of his PTSD in February 2015, during which he reported that he was not working and was experiencing significant difficulty with obtaining restful sleep. He did endorse participating in chores around the house and attending regular therapy sessions with a psychiatrist at his local VA medical center. After a review of the claims file and an in-person interview, the VA examiner confirmed the diagnosis of PTSD, and detailed the following symptoms: suspiciousness, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. In summation, it was the examiner’s impression that the PTSD contributed to occupational and social impairment with reduced reliability and productivity. In a March 2016 disability benefits questionnaire, a Dr. L.R.B. endorsed a diagnosis of PTSD with avoidant features as well as short term memory loss. She reported the following symptomatology: depression, anxiety, suspiciousness, near-continuous panic, depression, chronic sleep impairment, mild memory loss, impairment of short and long term memory, difficulty in understanding complex commands, impaired judgment, impaired abstract thinking, gross impairment in thought processes or communication, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, inability to establish and maintain effective relationships, suicidal ideation, and an intermittent inability to perform activities of daily living including maintenance of minimal personal hygiene. In summation, she found that the Veteran’s PTSD alone contributed to occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. In a corresponding neuropsychological screening report dated on January 26, 2016, Dr. L.R.B. further detailed that the Veteran’s continuing depression affected his ability to function adequately and led to occupational and social impairment such that he was not likely to gain or sustain employment. In a December 2017 statement, the Veteran’s spouse reported that the Veteran recently began exhibiting erratic behavior and she further detailed increasingly violent disturbances at night, including screaming and thrashing while sleeping. The Veteran submitted an November 27, 2018 evaluation from Dr. L.R.B., in which she noted that his cognitive and memory functioning had declined since 2016, and specifically detailed deficiencies in working memory, sustained concentration, sequential mental tracking and processing speed deficits. In her opinion the Veteran was totally unable to work; however, she did not indicate whether his total occupational impairment was wholly attributable to his PTSD, as she also discussed his physical impairments as due to peripheral neuropathy. During the January 2019 hearing, the Veteran detailed that he experienced an increased startle response from loud noises and did not enjoy social activities. He also reported that he had a low frustration tolerance level and would have outbursts of anger while interacting with other people. In addition, his spouse reported that in her belief that Veteran had been experiencing total social and occupational impairment ever since he filed his initial claim seeking service connection for PTSD in 2012. In a May 2019 correspondence, the Veteran’s spouse reported that he was isolated at home, did not like to socialize, and that his anger outbursts precluded his being able to function in any occupational setting. In a July 2019 letter, the Veteran indicated that he last worked full-time in 2000 and that the company he was working for at that time no longer existed. He also stated that he continued to do “odd jobs” for several years after ceasing full-time employment. Taken together, this evidence does not illustrate that the Veteran was specifically precluded from engaging in substantially gainful employment by virtue of his service-connected PTSD prior to January 26, 2016, the date of Dr L.R.B’s evaluation. The evidence from this period is entirely devoid of any medical findings, or persuasive lay evidence, to suggest that PTSD in and of itself would preclude the Veteran from securing or following a substantially gainful occupation. The February 2015 VA examination indicates that the Veteran’s PTSD was productive of occupational and social impairment with reduced reliability and productivity, but not more. Such a finding is not consistent with an inability to secure or follow a substantially gainful occupation. Absent evidence supporting such an inability, there is no basis for extraschedular referral for this period. In Dr. L.R.B.’s January 2016 evaluation, however, she stated that the Veteran was “likely” to be unable to secure and following gainful employment. Similarly, on the March 2016 disability benefits questionnaire, she found that the PTSD contributed to occupational deficiencies in most areas. Specific symptoms listed included impaired judgment, impaired abstract thinking, gross impairment in thought processes or communication, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, an inability to establish and maintain effective relationships, and an intermittent inability to perform activities of daily living including maintenance of minimal personal hygiene. Taken as a whole, and in the context of the Veteran’s educational and employment history, the Board finds that TDIU should be granted as of January 26, 2016, which of course is also the date that the Veteran’s evaluation was increased to 70 percent – warranting the application of 38 C.F.R. § 4.16(a). In summary, TDIU is warranted for the period from January 26, 216 until September 6, 2018, but not earlier. This determination represents a partial grant and a partial denial in the Veteran’s appeal. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Christopher M. Collins, 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.