Citation Nr: 21010663 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 13-25 893 DATE: February 25, 2021 ORDER From October 11, 2011, to April 24, 2017, a total disability rating based on individual unemployability (TDIU) on an extraschedular basis is granted. FINDING OF FACT Resolving any reasonable doubt in the Veteran’s favor, he was unable to secure and follow a substantially gainful occupation by reason of his service-connected psychiatric disorder from October 11, 2011, to April 24, 2017. CONCLUSION OF LAW For the appellate period from October 11, 2011, to April 24, 2017, the criteria for entitlement to a TDIU on an extraschedular basis are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (b) (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1988 to May 1996. This appeal stems from a September 2015 rating decision, which effectuated a July 2015 Board decision granting service connection for a psychiatric disorder. In January 2018, the Board found that entitlement to a TDIU prior to April 24, 2017, the date when the Veteran was awarded a 100 percent rating based on his psychiatric disorder, had been raised by the record as part of the underlying initial rating claim on appeal, and remanded this issue for initial development. In a May 2019 decision, the Board denied entitlement to a TDIU prior to April 24, 2017. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court), and by an April 2020 Order, the Court granted a Joint Motion for Remand (JMR) that vacated and remanded the Board’s decision. In September 2020, the Board remanded the issue of entitlement to a TDIU for the rating period prior to April 24, 2017, for referral of extraschedular consideration. In a December 2020 Memorandum, the Director of Compensation denied the extraschedular TIDU claim and it has since returned to the Board for further appellate consideration. Entitlement to a TDIU Prior to April 24, 2017 The Veteran asserts that he had been precluded from obtaining or maintaining substantially gainful employment throughout the pendency of the appeal, specifically as a result of his service-connected psychiatric disorder. A total disability rating for compensation purposes may be assigned where the schedular rating is less than total, where it is found that the disabled person is unable to secure or follow substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, providing at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 4.16(a). However, even when the percentage requirements are not met, a TDIU on an extraschedular basis may nonetheless be granted in exceptional cases, pursuant to specially prescribed procedures, when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16 (b). The Board is prohibited from assigning a TDIU on an extraschedular basis without ensuring that the claim is first referred to the Director for consideration of an extraschedular TDIU. Bowling v. Principi, 15 Vet. App. 1 (2001); 38 C.F.R. § 4.16 (b). Although the Board is required to obtain the Director’s decision before awarding extraschedular TDIU benefits in the first instance, it 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) (2012); 38 C.F.R. § 4.16 (b)). The Director’s decision is not evidence, but, rather, the de facto AOJ decision, and the Board must conduct de novo review of this decision. Wages, 27 Vet. App. at 238-39. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran’s education, training, and work history. The ultimate issue of whether TDIU should be awarded is not a medical issue, but rather is a determination for the VA adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev’d on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In Ray v. Wilkie, the Court defined the term “unable to secure and follow a substantially gainful occupation” in § 4.16(b) to have 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. See Ray v. Wilkie, 31 Vet. App. 58, 72-73 (2019). Analysis On review, the Board finds that the evidence is at least in equipoise as to whether the Veteran was precluded from maintaining and obtaining gainful occupation due to his service-connected psychiatric disorder during the initial rating period in question. During a November 2011 VA examination, the examiner identified symptoms of PTSD, to include difficulty in establishing and maintaining effective work and social relationships, grossly inappropriate behavior, gross impairment of thought process, and impaired judgment. The examiner further noted that the psychiatric symptoms were severe. It was noted that the Veteran once shot into Though, the examiner indicated that the Veteran reported that he did not feel his mental health symptoms impacted his ability to work. According to March 2013 VA treatment records, the Veteran reported that he last worked in 2011, and stopped working due to his emotional problems and physical limitations. Social Security Administration (SSA) records dated from 2012 to 2013 noted that the Veteran was angry for no reason, unable to sleep, had low energy/motivation, and what depressed. He had no friends, did not socialize, and had difficulty with concentration/attention. In a private August 2014 PTSD disability benefits questionnaire, the psychologist noted that the Veteran’s PTSD resulted in occupational and social impairment with deficiencies in most areas. The psychologist identified psychiatric symptoms, to include but not limited to depressed mood; anxiety; near continuous panic or depression affecting the ability to function independently, appropriately, and effectively; chronic sleep impairment; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work or worklike setting; and, suicidal ideation. The psychologist further highlighted the Veteran’s struggle with alcohol abuse and concluded that he would not be able to work. VA treatment records from 2013 to 2015 noted symptoms of social isolation, irritability, hypervigilance, and difficulty dealing with significant others. In support of his claim, the Veteran submitted a July 2017 vocational rehabilitation opinion that the Veteran had been unemployable due to his mental health disability since at least October 2011. In support of the opinion, the vocational consultant cited to evidence of record that showed severe psychiatric symptoms throughout the pendency of the appeal. Here, the Veteran has not held a job for many years and the medical evidence supports that his psychiatric disorder prevented him from maintaining gainful occupation. Specifically, despite the Veteran’s assertion in 2011 that he did not feel his mental health symptoms prevented him from working, even during this examination, the examiner noted that the Veteran had very severe psychiatric symptoms. Thus, with resolution of any doubt in the Veteran’s favor, the Board finds that entitlement to a TDIU on an extraschedular basis from October 11, 2011, is warranted. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Yaffe, 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.