Citation Nr: 21010865 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 18-38 883 DATE: February 25, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) on an extraschedular basis is granted. FINDING OF FACT 1. The appellant has neither a single disability rated 60 percent disabling or a combined disability evaluation of 70 percent with at least one disability rated 40 percent disabling or greater. 2. The appellant’s service-connected posttraumatic stress disorder (PTSD) has prevented him from obtaining or maintaining gainful employment during the period on appeal. CONCLUSION OF LAW The criteria for entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.1, 4.3, 4.10, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant served on active duty in the United States Army from December 1967 to December 1969. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This decision was issued by the RO after receipt of the results of a May 3, 2017 routine examination of the severity of the appellant’s service-connected posttraumatic stress disorder (PTSD). The May 2017 rating decision denied entitlement to an increased rating greater than 30 percent for service-connected PTSD, inherently denying a claim for TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a claim for TDIU, either expressly raised by the appellant or raised by the record, is not a separate “claim” for benefits, but rather, is part and parcel of the claim for an increased rating). This decision was appealed in a notice of disagreement (NOD) received by VA in May 2018. A Statement of the Case (SOC) was issued by VA in May 2018. VA received the appellant’s Substantive Appeal (Form 9) in July 2018, perfecting the appeal and requesting a hearing before a Veterans Law Judge. The appellant appeared before a Veterans Law Judge for a hearing in May 2019. A transcript of that hearing has been added to the claims folder on appeal. At that hearing, the appellant asserted a worsening of his symptoms since his retirement and indicated that his current service-connected PTSD would prevent him from obtaining new employment. In a September 2019 decision, the Board determined that the issue of entitlement to TDIU had been raised by the record in the course of developing the claim for an increased rating for PTSD which was then on appeal and ordered additional development on this issue. A second Board decision in October 2020 ordered additional development, to include submission of the claim to the Director, Compensation Service, for consideration of TDIU on an extraschedular basis. An advisory opinion on the question of extraschedular TDIU was issued by the Director, Compensation Service in December 2020, recommending that extraschedular TDIU be denied. Supplemental Statements of the Case (SSOC) was issued by VA in May 2019, July 2020, and December 2020. The Board notes that the Veterans Law Judge who conducted the May 2019 hearing is no longer employed by the Board. In light of the favorable decision below, no prejudice to the appellant has resulted in proceeding with a determination in the appeal prior to affording the appellant another hearing opportunity. 1. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. In the appellant’s May 2018 NOD, the issue of TDIU was raised by his attorney representative. In subsequent statements and filings, to include at his May 2019 Board hearing, the appellant and his representative asserted that his service-connected PTSD prevented him from obtaining or maintaining gainful employment. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2018). An evaluation of the level of disability must include consideration of functional impairment of the ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. 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 and follow a 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). Nevertheless, 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 disability shall be rated totally disabled. Thus, where the schedular threshold of 38 C.F.R. § 4.16(a) is not met, an extraschedular rating may be warranted under 38 C.F.R. § 4.16(b). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability”. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). For VA purposes, the term “unemployability” is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion. Individual unemployability, however, must be determined without regard to any nonservice-connected disabilities or advancing age. 38 C.F.R. §§ 3.341(a), 4.16, 4.19. The ultimate question is whether a veteran, in light of their service-connected disabilities, is capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The appellant’s current total combined disability rating is 60 percent from May 3, 2017. This includes a 50 percent disability rating for PTSD, a 10 percent disability rating for tinnitus, and a noncompensable rating for hearing loss of the left ear. As no single disability is rated 60 percent, and the total rating is not 70 percent with at least one disability rated 40 percent, the Board previously found that the appellant does not meet the schedular criteria for TDIU. 38 C.F.R. § 4.16(a). As noted above; however, TDIU is to be considered in all cases where a veteran is unable to obtain or maintain gainful employment due to service-connected disabilities, regardless of the schedular ratings. In cases where the schedular rating does not meet the threshold for consideration for TDIU, but there is an indication of unemployability due to service-connected disability, referral is made to the Director, Compensation Service. 38 C.F.R. § 4.16(b). In this case, the appellant’s claim was referred in October 2020, with the Director, Compensation Service issuing a memo opining against entitlement to extraschedular TDIU in a December 2020 decision. After a review of the evidence of record, the Board finds that the appellant’s PTSD has at least as likely as not rendered him unable to obtain or maintain gainful employment during the appeal period. As such, granting the appellant the benefit of the doubt, the Board concludes that extraschedular TDIU is warranted for the appellant for the entire period on appeal. 38 C.F.R. §§ 4.3, 4.16. In reaching this decision, the Board has reviewed all the medical evidence during the period on appeal. Beginning with the May 3, 2017 VA medical examination and opinion, the Board notes that the appellant was found to have occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or with symptoms controlled by medication. The Board observes though that these findings were colored by invalid testing results obtained during objective testing, with the examiner opining that these results indicted exaggeration or feigning of symptoms. The examiner did not offer an opinion specifically on the appellant’s ability to obtain or maintain gainful employment in consideration of the PTSD symptoms he did exhibit. A VA examination in January 2020 also found some over-endorsement of symptoms, but did note numerous symptoms affecting the appellant. While the examiner disagreed with the level of severity observed and reported by the private mental health examination, discussed below, the examiner did opine that the appellant’s symptoms caused occupational and social impairment with occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care, and conversation. The examiner did not offer an opinion specifically on the appellant’s ability to obtain or maintain gainful employment in consideration of the PTSD symptoms he did exhibit. In a March 2020 VA medical opinion, the examiner opined that there didn’t seem to be any social or leisure impairments due to the appellant’s PTSD. The examiner noted that with the large gap in the appellant’s employment history since his retirement in 2007, there was no information on which to offer an opinion regarding his ability to perform the physical or mental tasks required for occupation. In an October 2020 VA medical opinion, the examiner offered a scathing takedown of the July 2018 private medical opinion, asserting that the examiner must have been biased and stating that the examiner had no basis on which to offer the private opinion. The October 2020 medical opinion found there to be no functional impairment due to PTSD. Of particular note, the Board observes that none of the VA examinations or medical opinions appear to have considered VA medical treatment records in the claims folder in reaching their conclusions. While they found the appellant to be over-endorsing symptoms, rendering the results of their objective testing unreliable, the appellant’s lay reports of symptoms appear to be consistent with those reported at his VA medical treatment appointments. While more severe symptoms such as suicidal or homicidal ideations, hallucinations, delusional thinking and such were not reported, he consistently reports issues with depression and nightmares leading to poor sleep. He also routinely reported issues with irritability, avoidance of crowds and many social situations, isolation, and some marital difficulties. These VA mental health treatment records consistently show more severe symptoms and functional impairment than the VA examinations and medical opinions. The appellant submitted a private medical opinion, conducted in July 2018 which, alternatively, offered a much more severe description of the appellant’s mental health disability. The examiner conducted multiple batteries of tests and performed a thorough mental health examination of the appellant. After this, and a review of the claims folder, the private examiner opined that the appellant’s PTSD was totally occupationaly impairing and that his prognosis of returning to the competitive work force was zero. This opinion was offered after considering both the impact of the appellant’s symptoms on his functioning, as well as his level of education and work history. The examiner noted that due to the severity of the appellant’s service-connected PTSD symptoms, he was not otherwise be a suitable candidate for any vocational rehabilitation, education, or job placement assistance. The Board has also considered the appellant’s May 2019 testimony, in which he described symptoms of low energy, and disinterest which he attributed to his PTSD. He described how little interest he had in engaging in most activity, and how his symptoms had worsened since his initial retirement in 2007. While he had previously indicated that his retirement occurred due to various nonservice-connected musculoskeletal ailments, he indicated that now, he did not believe he would be able to pursue gainful employment just solely based on his mental health symptoms. (Continued on the next page)   Considering all this, the Board finds that the evidence is at least in equipoise on the question of whether the appellant is capable of obtaining or maintaining gainful employment. His VA medical treatment records and the July 2018 private examination indicate significant and frequent symptoms due to service-connected PTSD which the Board finds would prevent the appellant from performing the necessary mental and physical tasks required of employment, especially in consideration with the appellant’s educational level and work experience. Symptoms affecting the appellant’s sleep would make it difficult for him to obtain the restorative sleep necessary for performing work-related tasks in an employment setting, and symptoms of avoidance, irritability, and isolation would be an impediment to most forms of employment. As the evidence is in equipoise, the Board affords the appellant the benefit of the doubt, and concludes that entitlement to TDIU on an extraschedular basis for PTSD is warranted. 38 C.F.R. § 4.3, 4.16(b). K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Kleponis, 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.