Citation Nr: 21012793 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 15-15 196 DATE: March 5, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) from June 10, 1988 to January 23, 1991 is granted. FINDINGS OF FACT 1. The Veteran did not meet the schedular criteria for entitlement to a TDIU prior to January 23, 1991. 2. The evidence as to whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities prior to January 23, 1991 is, at least, in relative equipoise. CONCLUSION OF LAW The criteria for entitlement to a TDIU on an extraschedular basis from June 10, 1988 to January 23, 1991 have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty in the U.S. Marine Corps from September 1965 to September 1969 with combat service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) from an August 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office. The Veteran has been granted a total disability rating based on individual unemployability (TDIU) effective January 23, 1991, to November 29, 1993, with a 100 percent schedular rating for his psychiatric condition beginning November 30, 1993. In November 2011, he filed a TDIU claim stating he was entitled to this benefit from July 1988 until January 1991. The case was previously before the Board in December 2018. The case was remanded to refer the claim for extraschedular consideration. The Veteran’s claim for TDIU was referred for extraschedular consideration in July 2020. A Compensation and Pension service decision in September 2020 denied entitlement to TDIU on an extraschedular basis. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to January 23, 1991 The Veteran contends he was unable to secure or maintain substantially gainful employment due to his service-connected posttraumatic stress disorder (PTSD) prior to January 23, 1991. The Veteran worked for 15 years as a corrections officer from May 1973 to July 1987, and then as a security guard from August 1987 to June 1988. See January 1991 Veteran’s Application for Increased Compensation Based on Unemployability. 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. See 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.” See 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). For the purposes of determining rating level, disabilities resulting from a common etiology or affecting a single body system are considered a single disability. 38 C.F.R. § 4.16(a). When two or more disabilities are treated as one, the ratings for those disabilities are combined using the combined ratings table. 38 C.F.R. § 4.25. If a sufficient rating is present, then it must be at least as likely as not that the Veteran is unable to secure or follow a substantially gainful occupation as a result of that disease. See 38 C.F.R. § 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). Consideration may be given to the Veteran’s education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose, 4 Vet. App. at 363. In this case, prior to January 23, 1991, the Veteran did not meet the initial threshold requirements for TDIU. As noted above the case was remanded in December 2018 to refer the case for extraschedular consideration. Prior to January 23, 1991, the Veteran was service connected for a posttraumatic stress disorder (PTSD) rated as 50 percent disabling, allergic reaction with deviated septum, rated as 10 percent disabling, and bilateral hearing loss, rated as noncompensable. The Veteran’s combined disability rating was 60 percent during the period on appeal. The Veteran did not have one disability rated at 40 percent and a combined rating of 70 percent or more during this period or, a 60 percent or more rating for one service-connected disability. As such, the Veteran did not meet the threshold requirement for TDIU. 38 C.F.R. § 4.16(a). A September 2020 administrative decision from the Director of Compensation denied entitlement to TDIU on an extraschedular basis. When the percentage requirements of 38 C.F.R. § 4.16(a) are not met, entitlement to a TDIU on an extraschedular basis may still be granted. See 38 C.F.R. § 4.16(b) (providing 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”). In this regard, the Board notes that neither the RO nor the Board is authorized to assign an extraschedular TDIU in the first instance under 38 C.F.R. § 4.16 (b). See Wages v. McDonald, 27 Vet. App. 233 (2015). Rather, the regulation requires that, in cases of veterans who are unemployable by reason of service-connected disabilities and who fail to meet the threshold percentage requirements discussed above contained in 38 C.F.R. § 4.16(a), the case is to be submitted to VA’s Director of Compensation Service for consideration of whether entitlement to a TDIU is warranted on an extraschedular basis. See 38 C.F.R. § 4.16(b). The Board however is not bound by the Director’s decision. The Veteran reported last working fulltime on June 10, 1988. See January 1991 Veteran’s Application for Increased Compensation Based on Unemployability. July 1988 VA treatment records reflect that the Veteran was terminated from his previous employer. In December 1988 correspondence, the Veteran reported that his mental health condition rendered him unemployable. He stated that while employed as a corrections officer, he was deemed unable to work due to anxiety in May 1987. During a February 1989 hearing at the RO, the Veteran testified that he last worked as security guard in June 1988. The Veteran also stated that he went to the rehabilitation center at the VA and was told that there was uncertainty on whether or not he was capable of working. He also testified that the medication he was taking to treat his PTSD caused confusion, exhaustion, weakness, and slurred speech. He believed that the medication would interfere with his ability to operate machinery or drive a car. In March 1989 correspondence, the Veteran reported that his PTSD medication caused blurred vision and bloody noses. The Veteran attended a May 1989 VA psychiatric examination. He reported daily anxiety attacks causing nervousness, shaking, a pulling sensation with palpations, a burning feeling and periodic nose bleeds and disorientation. The Veteran reported hallucinations and delusions. Examination revealed that the Veteran was hyperactive to sounds. He lost his train of thought and was very uncomfortable during fire alarms, when people walked by in the hallway, and when a helicopter was heard outside. The examiner determined the Veteran appeared unemployable and stated that the Veteran “remained severely sick psychiatrically.” In a September 1990 examination, the examiner noted that the Veteran started at a community college, through a VA Vocational Rehabilitation program, taking classes in basic skills, such as reading, writing and arithmetic. The examiner stated that he did not believe that you were employable at that time. In correspondence in July 2020, the RO requested a review by the Director, Compensation Service for consideration of a TDIU prior to January 1991. The letter did not specifically address extraschedular consideration. The recommendation was a one sentence conclusory statement with no analysis and only a partial summary of the relevant evidence. In a September 2020 response, the Director cited the Veteran’s three years of college education and work as a security guard until June 1988. The Director further noted a May 1989 physician evaluation that showed a diagnosis of PTSD with noted occupational impairment accredited to social isolation and August 1990, treatment reports that showed poor intrapersonal relationships. The Director cited October 1990 treatment reports showed that the Veteran was enrolled in college. The Director also noted consideration of statements from the Veteran, friends, and family without further comment. The Director assigned greater weight objective medical evidence of record and found no evidence of inability to perform sedentary employment due to service-connected conditions prior to January 1991, stating that there are many sedentary jobs in the workplace that do not require interpersonal skills. Although the Director placed weight on the medical reports, there was no mention of the medical observations of delusions, hallucinations, and loss of train of thought as well as the college study associated with basic skills such as reading, writing and arithmetic. It is the job of rating authorities to determine employability, but the Director did not mention all manifestations or the examiner’s assessments of employment skills and capabilities. Based on the Veteran’s service-connected PTSD, the Board finds the Veteran was factually unable to engage and maintain substantially gainful employment. The Board finds the May 1989 VA examiner’s determination highly probative. The examiner reviewed the Veteran’s claims file and performed an examination before determining that the Veteran was unable to work. The Veteran also credibly described his PTSD symptoms and medication side effects that would have significantly impaired his ability to work. In light of the evidence of record, the Board finds it is unlikely that the Veteran would have been able to find and sustain substantially gainful employment following the date he last worked fulltime in June 1988. Accordingly, from June 10, 1988 to January 23, 1991, the Veteran’s service-connected PTSD prevented him from doing any type of employment. As such, entitlement to TDIU is warranted during this period. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Fitzgerald, 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.