Citation Nr: 21012474 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 13-08 452 DATE: March 4, 2021 ORDER 1. Entitlement to a total disability rating based on extraschedular individual unemployability (TDIU) prior to September 23, 2017 is granted. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) from September 23, 2017 is denied. FINDINGS OF FACT 1. Prior to September 23, 2017, the Veteran’s service-connected disabilities prevented him from obtaining and sustaining a substantially gainful occupation. 2. From September 23, 2017, the Veteran’s service-connected disability is not shown to have rendered him unable to obtain and sustain a substantially gainful occupation. CONCLUSIONS OF LAW 1. Prior to September 23, 2017, the criteria for the grant of extraschedular TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 4.3, 4.16, 4.18. 2. From September 23, 2017, the criteria for a TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 26, 1977 to May 23, 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran’s claim was previously before the Board in August 2017 and July 2019. In August 2017, the Board remanded for additional development. In July 2019, the Board remanded for the Veteran to timely submit a Notice of Disagreement and for a referral to the Director, Compensation Service for consideration of an extraschedular TDIU. While a timely NOD was submitted for an increased rating, no perfected appeal was received as to that issue. TDIU 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 disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340 (a)(1), 4.15. TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is a sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). 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 issue is not whether the Veteran can find employment generally, 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). Where a Veteran is unemployable by reason of his or her service-connected disabilities but fails to meet the percentage standards set forth in § 4.16(a), TDIU the claim should be submitted to the Director of Compensation Service, for extraschedular consideration. 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 Service. Bowling v. Principi, 15 Vet. App. 1 (2001). The term “unemployability,” as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91 (Dec. 17, 1991). The issue is whether the Veteran’s service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a “living wage”). See Moore v. Derwinski, 1 Vet. App. 356 (1991). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court defined the term “unable to secure and follow a substantially gainful occupation” in § 4.16(b) to include 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: a veteran’s history, education, skill, and training; whether a veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether a veteran has the mental ability to perform the activities required by the occupation at issue. In determining whether the Veteran is entitled to a TDIU, neither his nonservice-connected disabilities nor his age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Court has held that the central inquiry in determining whether a Veteran is entitled to a TDIU is whether service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). The Veteran contends that he cannot work because his service-connected disabilities render him unable to secure or follow a substantially gainful occupation. See November 2020 Appellate Brief. The record reflects that the Veteran has been unemployed since 2007. The Veteran’s last occupation was as a truck driver. He has variously reported on his resume that he has a high school diploma or G.E.D., but also noted during treatment that he quit school after finishing 11th grade. See December 2010 VA 21-8940 and June 2010 VA treatment record. On his resume, he stated that he was employed as a truck driver or bus driver from February 1980 until March 2004. The TDIU claim was received in October 2010. The Veteran’s combined rating from October 21, 2010 to September 23, 2017 was 40 percent. His major depressive disorder was rated at 30 percent disabling and residuals of a right ankle injury rated at 10 percent disabling. Beginning December 20, 2016, the Veteran’s right ankle disorder was rated at 20 percent disabling. He is ineligible for a schedular TDIU under 38 C.F.R. § 4.16(a) for this period because he does not have a single disability rated at 60 percent, nor can combined schedular rating of 60 percent be considered a single disability as none of the relevant scenarios exist. Beginning September 23, 2017, the Veteran’s major depressive disorder increased to 100 percent disabling, making the Veteran’s combined rating 100 percent disabling. 1. TDIU prior to September 23, 2017 The issue of entitlement to an extraschedular rating was referred to the Director of Compensation Service, who declined to find that the Veteran was entitled to an extraschedular rating for TDIU. The Board finds that the preponderance of the probative evidence establishes that the combined effect of the Veteran’s service-connected disabilities do present such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. At a VA Mental Disorders examination on January 6, 2011, the examiner noted that the Veteran’s mental disorder symptoms were not severe enough to interfere with occupational and social functioning. See January 2011 C&P Exam. The Veteran’s depression was not found to prevent employability. Id. The examiner also noted on this examination that the Veteran’s description of mental symptoms were vague; not describing the symptoms associated with panic attacks and providing the examiner with descriptions of hallucinations the examiner did not believe to be true. Id. April 2011, October 2011, and February 2012 VA treatment notes stated that the Veteran reported having varied auditory hallucinations. In April 2011, the Veteran reported that the hallucinations told him to get into fights. In October 2011, the Veteran reported more vague hallucinations, sometimes seeing shadows in the evening. He also indicated that he was afraid to go out as he felt he may harm someone. In February 2012, the Veteran reported his hallucinations were “rambling.” In February 2014, the Veteran reported that he had an altercation after an argument over a handicapped parking spot that resulted in him being jailed. Further, in October 2014, the Veteran indicated that he continued to have trouble controlling his anger, but only had verbal and not a physical conflict. He denied auditory hallucinations. In November 2015, the clinician assessed that the Veteran was not doing well and prescribed the Veteran an increase in his medication sertraline. At this appointment, the Veteran reported feeling much more depressed and anxious, with continued auditory hallucinations calling his name. In June 2016, the Veteran reported that he was “wanting to die.” In December 2016, the Veteran reported that he continued to be paranoid and thought something bad would happen to himself or others. He also stated that he had been feeling depressed. Additionally, throughout these medical reports, he consistently reported having trouble sleeping. During the period on appeal, the Veteran oftentimes appeared at appointments as anxious or depressed, sometimes paranoid. The Veteran was also noted to have borderline intellectual functioning by the examiners and is noted to be inconsistent with his mental health treatment, both with counseling and medication, with several changes to his medication. In addition to the Veteran’s mental health conditions, the Veteran is service-connected for a right ankle disorder during this time period on appeal. At a VA ankle medical examination on March 2013, the examiner noted the Veteran had significant limitations on doing physical work requiring prolonged standing, walking, carrying, lifting bending, or stooping. At a subsequent VA examination in May 2015, the examiner opined that the Veteran’s conditions impact his ability to perform occupational tasks. The Veteran, due to his ankle, had limited walking and standing time and was unable to climb. He also had difficulty getting in and out of vehicles and limited carrying and lifting weight. In October 2016 and April 2017, the Veteran represented that he has constant ankle pain rated either 7 or 8 out of 10, with increased pain with use. At the April 2017 C&P Exam, the Veteran reported that persistent ankle and flat foot pain render him unable to walk more than one city block. The Veteran also had difficulty standing more than 20 minutes at a time. The Board also notes that the Veteran was awarded Social Security Administration (SSA) disability benefits in August 2009. While SSA determinations are not binding on the Board, it is the duty of the Board to assess the credibility and weight to be given such evidence. Washington v. Derwinski, 1 Vet. App. 459, 465-66 (1991); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); see also Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992) (finding that SSA determinations should be given appropriate consideration and weight in determining to award or deny an appellant TDIU). The SSA found that the Veteran was disabled since August 18, 2009, due to his left hand index finger amputation and reconstruction with ongoing chronic pain syndrome, right ankle degenerative changes with chondromalacia, tendinosis, and tenosynovitis, radiculitis, obesity, diabetes mellitus, paranoid schizophrenia, intermittent explosive disorder, dysthymic disorder, pain disorder, and social anxiety disorder. In reaching its determination, the SSA considered the Veteran’s Adult Function Report wherein the Veteran stated he was unable to drive as it was too painful to use his right foot to use the gas pedal and brake. The Veteran noted that since his illness onset, he did not visit the homes of friends and that he did not handle stress well. SSA also conducted a psychiatric review on September 10, 2010, in which the examiner found that the Veteran had moderate difficulties in maintaining social functioning and moderate difficulties in maintaining concentration, persistence, or pace. The examiner considered treatment records wherein the Veteran was noted to appear as depressed, having limited insight and judgment, and expressing anger with people. The examiner also found that the Veteran had difficulty remembering and carrying out detailed instructions. The examiner ultimately found that the Veteran was somewhat limited but did not find that it made the Veteran unable to function independently, appropriately, and effectively on a sustained basis. However, the SSA determined that the assessment should be given little weight as, at the hearing level, they determined the Veteran was more limited than determined by the examiners. The Board finds the SSA decision probative based on its analysis of the evidence, which included an analysis of the pertinent medical evidence in the Veteran’s claims file, and thus it is entitled to probative value. In coming to this conclusion, the Board only considers the evidence as it pertains to the service-connected disabilities. The Board has also considered the lay evidence of record, to include competency and credibility of the lay statements. 38 U.S.C. § § 5107 (b), 7104(a); 38 C.F.R. § 3.303 (a); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In weighing credibility, VA may consider internal inconsistency, facial plausibility, and consistency with other evidence of record. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). While the VA examiner is competent to opine on the Veteran’s psychiatric conditions, the reports from the Veteran through the medical treatment records of his symptomatology are consistent and the treatment providers consistently note that the Veteran appears as anxious, depressed, or paranoid. Accordingly, the Board gives more probative weight to the medical treatment records, SSA determination, and the Veteran’s statements. In August 2020, the Director opined that, “The available evidence does not show marked interference with employment or frequent periods of hospitalization due to a service-connected condition. The effects of a service-connected conditions did not prevent all forms of employment, including sedentary work.” As such, the Director found that extraschedular TDIU prior to September 23, 2017 was not established. Although the Director’s decision is important in that it allows the Board to consider entitlement to an extraschedular TDIU in this decision, as mentioned above, it is not binding. 38 C.F.R. § 4.16; Wages v. McDonald, 27 Vet. App. 233, 236 (2015) (The Board is authorized to award extraschedular TDIU after obtaining the Director’s decision. The Board is not bound by Director’s decision in deciding whether to award TDIU). In this regard, the Director’s decision did not address the Veteran’s medical treatment records or lay statements from the Veteran. Further, the Director’s decision overlooks a consistent symptomology, particularly anger and the Veteran’s auditory hallucinations, which made it difficult for him to concentrate at work and interact with others. It is at least as likely as not that the Veteran’s service-connected disabilities, as a whole, are made it hard for the Veteran to function in any work environment given his educational background and experience. Considering the above, and the Veteran’s entire disability picture, the Board finds the Veteran is unable to work due to his service-connected disabilities prior to September 23, 2017. Consequently, the Veteran is entitled to extraschedular TDIU for the time period prior to September 23, 2017. 2. TDIU from September 23, 2017 For the period since September 23, 2017, the Veteran’s service-connected major depression disorder has been rated as 100 percent (total) disabling. The Board notes that a grant of a 100 percent schedular rating does not necessarily render the issue of entitlement to a TDIU moot, as the TDIU could in certain circumstances render the Veteran eligible for special monthly compensation (SMC). SMC may be warranted if the Veteran has a 100 percent disabling rating for a single disability, and VA finds that TDIU is warranted based solely on disabilities other than the disability that is rated at 100 percent. See Buie v. Shinseki, 24 Vet. App. 242 (2011); Bradley v. Peake, 22 Vet. App. 280 (2008). In this case, the Veteran has a 100 percent total combined rating for all of his service-connected disabilities. However, in order for TDIU to not be moot, TDIU must be warranted based solely on disabilities other than the disability that is rated at 100 percent, which in this case is his right ankle disorder rated as 20 percent disabling. The Board has considered what sedentary employment means in this Veteran’s case. Withers v. Wilkie, 30 Vet. App. 139 (2018) (Because VA does not define sedentary employment in its regulations for a TDIU, the Board must determine the meaning on a case-by-case basis). Sedentary means doing or requiring much sitting or not physically active. Merriam-Webster’s Collegiate Dictionary 1123 (11th ed. 2012). It also means: 1. Sitting habitually; of inactive habits. 2. Pertaining to a sitting posture. Dorland’s Illustrated Medical Dictionary, 1687 (32nd ed. 2012). When considering all the available evidence for the period at issue, the Board finds that TDIU is not warranted. In an April 2017 VA Examination, the examiner noted that the Veteran’s right ankle pain coupled with the pain from his flat feet prevented the Veteran from being able to walk for more than one city block and made it difficult for the Veteran to stand for more than 20 minutes at a time. See April 2017 C&P Examination. The examiner opined that the severity of the Veteran’s disorder was mild to moderate. Id. The Veteran also contended that using his right foot to brake and step on the gas pedal causes pain in his ankle. See June 2010 SSA Function Report. The Veteran’s limitations on walking, standing, and inability to drive without pain are not inconsistent with the definition of sedentary employment of “doing or requiring much sitting” or “not physically active.” Based on the Veteran and medical examiner’s description of the Veteran’s pain and physical limitations, the Veteran is capable of work that is not physically active. This work would not be limited by his experience or educational attainment. Further, the Veteran’s flat feet condition is not service-connected and thus cannot be considered by the Board in determining whether TDIU is appropriate. Hatlestad, at 5 Vet. App. 524. Given the foregoing, the pertinent evidence of record shows that the Veteran was not rendered unable to obtain or maintain substantially gainful employment by virtue of his right ankle from September 23, 2017. For the aforementioned reasons, the claim must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Emily Tamlyn Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board V. Schmidt 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.