Citation Nr: 21013213 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 14-03 925 DATE: March 9, 2021 ORDER A total disability rating based on individual unemployability due to service-connected disability (TDIU) is granted for the entire period on appeal prior to October 30, 2012, subject to the law and regulations governing the award of monetary benefits. FINDING OF FACT During the period on appeal prior to October 30, 2012, it is at least as likely as not that the Veteran’s service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, the criteria for an award of a TDIU for the period on appeal prior to October 30, 2012 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from March 1969 to July 1971, to include service in Vietnam. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a December 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Winston-Salem, North Carolina. After remanding the case for additional development in July 2015, the Board entered a decision in June 2016 that granted a TDIU, effective October 30, 2012. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2019 memorandum decision, the Court vacated the Board’s decision insofar as it denied entitlement to a TDIU prior to October 30, 2012 and remanded the case to the Board to address the matter of entitlement to a TDIU on an extraschedular basis prior to that date. In November 2019, the Board remanded the case to the agency of original jurisdiction for referral to the Director of the Compensation Service pursuant to 38 C.F.R. § 4.16(b). In November 2020, the Director denied the claim. The case was subsequently returned to the Board. Entitlement to a TDIU prior to October 30, 2012 The Veteran has claimed that he should be entitled to TDIU prior to October 30, 2012. Specifically, he has asserted that he should have been assigned an effective date of September 23, 2010, which was the date of his claim for service connection for PTSD. See July 2016 notice of disagreement (construed as a motion for reconsideration and denied in November 2017). The Veteran did not have any service-connected disabilities prior to September 23, 2010. As of that date, he was granted service connection for PTSD with alcohol abuse, which was evaluated as 50 percent disabling. See December 2011 rating decision. He was later granted service connection for type II diabetes mellitus effective from April 28, 2011, and for coronary artery disease effective from October 30, 2012. He was in receipt of a 50 percent evaluation from September 23, 2010, and a combined 60 percent evaluation as of April 28, 2011. A total disability rating for compensation may be assigned, where the schedular rating is less than total, when a veteran is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided 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. § 4.16(a). Prior to October 30, 2012, the Veteran does not meet the criteria for a schedular award of TDIU. Nevertheless, even when the percentage requirements are not met, entitlement to TDIU on an extraschedular basis may be granted in exceptional cases when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). Following review of the record, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation for the period on appeal prior to October 30, 2012. A private treatment provider, L.G., performed a psychological evaluation in December 2010. See January 2011 psychological evaluation report by L.G. At that time, she diagnosed the Veteran with chronic and severe PTSD and alcohol addiction. L.G. opined that the Veteran’s PTSD symptoms caused significant disturbances in all areas of life. Due to his hypervigilance and isolating behaviors, she found that he was severely compromised in his ability to initiate or sustain work or social relationships, and due to memory and concentration problems, he was unable to learn new tasks. She considered his prognosis for recovery to be poor and opined that the Veteran was totally and permanently disabled. In March 2011, a primary care note indicated that the Veteran was treating with a private psychiatrist for symptoms of PTSD, including nightmares and hypervigilance. He had worked as a loom technician in a textile factory for approximately 30 years, but was laid off in April 2010. At that time, he was collecting unemployment and not finding any work opportunities. See March 2011 VA treatment records. In October 2011, L.G. continued to diagnose chronic, severe PTSD. She stated that the Veteran’s hypervigilance and hyperarousal prevented him from being consistently productive at any job. Due to cognitive problems, including with memory and concentration, he was not able to perform any job that required extended periods of concentration, problem-solving, or decision-making. She again opined that he was totally and permanently disabled and unemployable. Records from the Social Security Administration (SSA) include a November 2011 evaluation by Dr. S.L. The Veteran reported constant recurring memories, nightmares, and avoidance behavior. His concentration varied. Dr. S.L. stated that the Veteran’s attention and concentration were reduced below normal and found that he would not be able to actively perform repetitive tasks with any consistency over long periods of time. Dr. S.L. also indicated that the Veteran would have difficulty relating to people in the work setting and would not be able to tolerate the stress and pressures associated with day-to-day work activity. SSA records also include a November 2011 medical report completed by Dr. L.K.. The Veteran reported difficulty sleeping, occasional nightmares, and antisocial behavior. He stated that he did not like being around other people and that his antisocial behavior affected his ability to work. However, a mental status examination was within normal limits. The examiner found that the Veteran’s PTSD symptoms did not cause limitations and that his prognosis was good. A November 2011 Mental Residual Functional Capacity Assessment completed by D.N., Psy.D., indicated that the Veteran was incapable of remembering detailed instructions, maintaining attention and concentration to complete tasks, working in a social environment, and working in even a low-stress environment. Dr. D.N. determined that the Veteran had severe and persistent mental illness in the form of PTSD and depression and that he lacked the ability to perform even simple, routine, repetitive tasks in a low-stress environment. During a VA examination in November 2011, the Veteran endorsed symptoms of sleep problems, frequent nightmares, sleep terrors, flashbacks, intrusive memories, social isolation, and the tendency to spend time alone in his own thoughts. He reported he was unable to sleep in the same room with his wife due to his PTSD symptoms. The examiner found that his symptoms were severe, constant, and continuous. The Veteran had reported that his highest level of education completed was 10th grade and that he had poor academic performance. He stated that he worked as a textile mill worker for 33 years. He also indicated that he was laid off due to the company downsizing and that his unemployment was not due primarily to the effects of a mental condition. His alcohol abuse resulted in six DWI charges and he continued to abuse alcohol. A mental status examination revealed flat affect and mood, but otherwise was within normal limits. The VA examiner noted that the Veteran had difficulty establishing and maintaining effective work and social relationships and difficulty adapting to stressful circumstances, including work or a work-like setting. The examiner diagnosed PTSD with alcohol abuse. The examiner concluded that the Veteran’s symptoms caused clinically significant distress or impairment in social, occupational, or other important areas of functioning, and that there was occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and normal conversation. The Veteran’s private psychologist provided a March 2012 psychological evaluation. He met the diagnostic criteria for PTSD and alcohol addiction. The private psychologist noted that the Veteran continued to have significant sleep problems. He also reported increasing problems with memory and concentration and had a difficult time completing tasks. He preferred to spend time alone and did not socialize, except with his family. The private psychologist continued to opine that the Veteran was permanently and totally disabled and unemployable. The final determination with respect to a veteran’s entitlement to a TDIU is an adjudicatory, and not a medical, function. The Board notes that an opinion unfavorable to the Veteran’s claim was offered by a VA psychologist in January 2016. Viewed in its totality, however, and giving due consideration to the opinions advanced by his treating care provider, the Board is satisfied that the criteria for an extraschedular award of TDIU have been met for the period on appeal prior to October 30, 2012. The evidence, at a minimum, gives rise to a reasonable doubt on the matter. 38 C.F.R. § 3.102. The benefit sought on appeal is granted. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board F. Lanton, 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.