Citation Nr: 21012111 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 13-12 630 DATE: March 3, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) from August 3, 2009, to December 28, 2011, is granted, subject to controlling regulations governing the payment of monetary awards. FINDING OF FACT From the August 3, 2009 effective date of the grant of service connection for PTSD to December 28, 2011, the Veteran’s service-PTSD precluded all substantially gainful employment for which his education and occupational experience would otherwise have qualified him. CONCLUSION OF LAW The criteria for entitlement to a TDIU on an extraschedular basis from August 3, 2009 to December 28, 2011 are met.  38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1964 to March 1967 with service in Vietnam. In September 2020, the Department of Veterans Affairs (VA) Regional Office (RO) granted entitlement to a TDIU, effective December 28, 2011. In November 2020, the Board remanded the claim for referral to the Director of Compensation Service for consideration of entitlement to a TDIU prior to December 28, 2011 in accordance with 38 C.F.R. § 4.16(b). Entitlement to a TDIU on an extraschedular basis prior to December 28, 2011 The Veteran’s formal TDIU claim (VA Form 21-8940) was filed in March 2019. As noted previously in the introduction, in September 2020, the RO granted entitlement to a TDIU, effective December 28, 2011. However, the issue of an earlier effective date for the grant of a TDIU is still on appeal as TDIU was raised as part and parcel of an appeal for a higher initial disability rating for PTSD. The Board granted service connection for PTSD in its January 2017 decision, and the RO implemented this grant in a February 2017 rating decision, assigning an initial disability rating of 30 percent for PTSD. The Veteran timely appealed the initial disability rating assigned in a May 2017 Notice of Disagreement. Therefore, the claim period on appeal dates back to the August 3, 2009 effective date of service connection for PTSD. Harper v. Wilkie, 30 Vet. App. 356, 361-62 (2018) (the veteran’s notice of disagreement with the initial rating assigned in connection with the grant of service connection, combined with evidence of unemployability, resulted in the issue of entitlement to a TDIU from the effective date of the grant of service connection being on appeal). VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from securing and following “substantially gainful employment” consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. 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). The Board must evaluate whether there are circumstances in the veteran’s case, apart from any non-service-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service-connected conditions. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court defined the term “unable to secure and follow a substantially gainful occupation” as having 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 following: 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. The Board notes that, for purposes of entitlement to TDIU, marginal employment is not considered substantially gainful employment. 38 C.F.R. § 4.16. Generally, marginal employment is deemed to exist when a veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce as the poverty threshold for one person. Id. Marginal employment may be held to exist on a “facts found basis” even when earned annual income exceeds the poverty threshold. This includes but is not limited to “employment in a protected environment such as a family business or sheltered workshop.” Id. The regulations provide that if there is only one such disability, it must be rated at 60 percent or more, and if there are two or more 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. 38 C.F.R. § 4.16(a). A total disability rating may also be assigned on an extraschedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). TDIU is warranted under 38 C.F.R. § 4.16(b) if it is established by the evidence of record that service-connected disabilities render the Veteran unable to secure and follow substantially gainful employment. Although the Board may not assign an extraschedular rating in the first instance, it may assign one on appeal of a determination by the Director of Compensation Service. Here, the Veteran is in receipt of service connection for the following: chronic kidney disease, noncompensable from August 4, 2010, and 80 percent from February 27, 2017; obstructive sleep apnea, rated 50 percent from November 6, 2018; posttraumatic stress disorder (PTSD), rated 30 percent from August 3, 2009, and 50 percent from January 4, 2019; right leg varicose veins, rated 40 percent from December 28, 2011; left leg varicose veins, rated 40 percent from December 28, 2011; bilateral hearing loss, rated 10 percent from December 4, 2018; tinnitus, rated 10 percent from December 4, 2018; and noncompensable groin tinea cruris. The Veteran’s combined disability rating is 30 percent from August 3, 2009, 80 percent from December 28, 2011, and 100 percent from February 27, 2017. Therefore, the Veteran fails to meet the threshold rating requirements of 38 C.F.R. § 4.16(a) prior to December 28, 2011. Moreover, the Veteran’s only service-connected disabilities prior to December 28, 2011 were PTSD and groin tinea cruris. Thus, the Board will consider whether those disabilities rendered the Veteran unable to secure and follow substantially gainful employment prior to December 28, 2011. As noted in the introduction, the case was forwarded to the Director of Compensation in response to the Board’s November 2020 remand. In January 2021, the Director concluded that entitlement to a TDIU on an extraschedular basis was not warranted. The Director found the overall evidence failed to support the contention that any of the service-connected disabilities or a combination of the effects of those disabilities supported an exceptional situation that prevented gainful employment prior to December 28, 2011. The Board may now consider the issue on the merits, de novo, with the Director’s decision being in essence the de facto decision of the Agency of Original Jurisdiction (AOJ) and, as such, not evidence. Wages v. McDonald, 27 Vet. App. 233, 238-239 (2015). For the following reasons, a TDIU on an extraschedular basis is warranted from August 3, 2009, but no earlier. The evidence of record shows that the Veteran graduated high school with an occupational history primarily consisting of employment in a warehouse. A February 2012 private examination noted that the Veteran reported difficulties in socializing and experienced periods of anger with irritable mood swings. The private physician found the Veteran had some occupational and social impairments with a decrease in reliability and productivity. During a March 2013 VA PTSD examination, the Veteran endorsed symptoms of depressed mood, anxiety, and chronic sleep impairment. During a February 2017 VA examination, a VA psychologist found that the Veteran experienced occupational and social impairment with reduced reliability and productivity. The Veteran endorsed symptoms of depressed mood, anxiety, chronic sleep impairment, flattened affect, and disturbances of motivation and mood. The competent and credible evidence of record shows that the Veteran is not currently able to engage in substantially gainful employment due to the psychological symptoms caused by his service-connected PTSD. Specifically, the evidence of record reflects that the Veteran experiences significant impairments from his service-connected PTSD (including anxiety, depression, chronic sleep impairment, anger, difficulties socializing, irritability, and disturbances of motivation and mood) that prevent him from performing any type of employment. Moreover, there is a lack of evidence of record establishing that the Veteran’s service-connected PTSD symptoms suddenly became worse from December 28, 2011. In this regard, an “effective date should not be assigned mechanically based on the date of a diagnosis. Rather, all of the facts should be examined to determine the date that [the Veteran’s disability] first manifested.” Swain v. McDonald, 27 Vet. App. 219, 224 (2015) For the foregoing reasons, the Veteran’s service-connected PTSD rendered him unable to obtain and maintain substantially gainful employment from August 3, 2009 to December 28, 2011. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (The “applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner”). Although the Veteran’s formal TDIU claim (VA Form 21-8940) was filed in March 2019, given that the issue of entitlement to a TDIU came to the Board as part and parcel of the claim for an higher initial disability rating for PTSD, an effective date of August 3, 2009, the effective date of the grant of service connection for PTSD, is warranted for entitlement to a TDIU on an extraschedular basis. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Styer, 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.