Citation Nr: 21013660 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 09-47 376 DATE: March 10, 2021 ORDER The claim for a total disability evaluation based on individual unemployability (TDIU) on extraschedular basis prior to August 23, 2019, is denied. FINDING OF FACT Prior to August 23, 2019, the evidence fails to establish that the Veteran’s service-connected disabilities preclude him from securing and following substantially gainful employment. CONCLUSION OF LAW The criteria for TDIU on extraschedular basis prior to August 23, 2019, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1957 to November 1966 and from November 1966 to September 1974. He requested a Board hearing with his substantive appeal. However, he canceled his hearing request in an April 2017 statement. This matter is on appeal from a September 2008 rating decision. This appeal was previously remanded in November 2020 for additional development, which has since been completed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Disability evaluations are determined by comparing the Veteran’s present symptomatology with the criteria set forth in the VA’s Schedule for Ratings Disabilities. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Total disability will be considered to exist 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. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more, and that, if there are two or more service connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). If, however, the Veteran does not meet these required percentage standards set forth in 38 C.F.R. § 4.16(a), he still may receive a TDIU on an extraschedular basis if it is determined that he is unable to secure or follow a substantially gainful occupation by reason of her service connected disabilities. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, there must be a determination as to whether there are circumstances in this case, apart from any non-service connected conditions and advancing age, which would justify a total rating based on unemployability. See Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). Being unable to maintain substantially gainful employment is not the same as being 100 percent disabled. “While the term ‘substantially gainful occupation’ may not set a clear numerical standard for determining TDIU, it does indicate an amount less than 100 percent.” Roberson v. Principi, 251 F.3d 1378 (Fed Cir. 2001). Assignment of a TDIU evaluation requires that the record reflect some factor that “takes the claimant’s case outside the norm” of any other veteran rated at the same level. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Id. In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court interpreted the phrase “unable to secure and follow a substantially gainful occupation” to have 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, and the noneconomic component requires more than determining the presence or absence of employment producing income exceeding any particular threshold. The ultimate inquiry on the Veteran’s ability to secure or follow that type of employment. The Court also provided that to determine whether a Veteran can secure and follow a substantially gainful occupation, attention must be given to the Veteran’s history, education, skill, and training; whether the Veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. The Board is precluded from assigning an extraschedular rating in the first instance. See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008); see also Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In November 2020, the Board remanded the case for referral to the director of VA Compensation and Pension for extraschedular consideration. The director considered the Veteran’s claim but denied TDIU on an extraschedular basis in January 2021. Here, the Veteran is currently service connected for other specified schizophrenia and other psychotic disorder with persistent auditory hallucinations at a 100 percent rating, and a sacroiliac injury and weakness at a 20 percent rating. He has a total combined rating of 100 percent from August 23, 2019. In a September 2020 rating decision, the RO found that the issue regarding TDIU was moot as the Veteran is already in receipt of 100 percent rating, but the Board explained in remanding the issue of TDIU that a rating could be assigned earlier than the August 2019 on an extraschedular basis. Thus, the Board will now determine whether a TDIU was warranted prior to that date. From the beginning of the period on appeal, from March 11, 2008, the Veteran was assigned a 30 percent rating for his psychiatric disorder and 10 percent for his sacroiliac injury, with a total disability rating of 40 percent. Given the November 2020 Board decision on the Veteran’s increased rating claim, from May 29, 2015 to August 22, 2019, he was in receipt of a 50 percent rating for his psychiatric disorder and 20 percent for his sacroiliac injury, with a total disability of 60 percent. Thus, the Veteran did not meet the schedular criteria for TDIU prior to August 2019. Nevertheless, the Veteran has asserted that his service-connected disabilities rendered him unemployable prior to August 2019. Pursuant to the November 2020 Board remand, the Veteran’s TDIU claim was referred to the Director of Compensation Service for extraschedular consideration. The Director considered the Veteran’s claim but denied TDIU on an extraschedular basis in January 2021. The Board’s determination to refer a case for extraschedular consideration under § 4.16(b) is a factual finding that does not bind the Board or require the Board to award an extraschedular rating; however, if the Board denies entitlement to a TDIU after referral, the Board “must provide adequate reasons or basis for deviating from its earlier referral decision.” In his TDIU application, the Veteran asserted that he became too disabled to work from January 2006. In support of this contention, the Veteran submitted a May 2020 psychological evaluation by Dr. K.B., finding that the Veteran’s mental health disorder has more than likely prevented him from maintaining substantially gainful employment since the date of his disability claim in March 2008. Dr. K.B. suggested that his symptoms such as engaging in obsessive rituals that interfere with routine activities, persistent delusions and hallucinations, poor sleep, poor interpersonal skills, and irritability has significantly impacted his employment. According to a July 2008 VA psychological examination report, upon review of the evidence of record, an examination of the Veteran, and considering lay statements, the VA examiner determined that the Veteran’s service-connected Paranoid Schizophrenia “has not worsened although he is still exhibiting residual persecutory ideas. These latter are moderate in severity and his MDD is mild in severity. In spite of this he has managed to sustain what appears to have been a fulfilling marriage and steady employment over the years until retirement.” VA examinations in May 2015 for the Veteran’s back disorder and psychiatric disorder both reported that his condition impacts his ability to work. Because of his chronic low back, the VA examiner advised against strenuous physical activities but not some type of sedentary work. According to a May 2015 VA examination report, the VA psychologist found that the Veteran’s psychological impairment resulted in occupational and social impairment which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. The VA psychologist acknowledged the Veteran’s reports of hearing the voice of his son who passed away and his beliefs at times that he is going to come home. The VA psychologist explained: While these reactions are primarily related to his grief, it is likely that his history of a thought disorder, while more stable currently then when first diagnosed, has impacted his grief reaction in terms of his ability to maintain touch reality with regard to beliefs that he hears him and he is coming home. [The Veteran] stated in current interview that he knows [his son] is gone, though appears that he feels confused by these experiences when they occur. The Veteran stated that his symptoms of schizophrenia have been stable since the 1980s. The VA psychologist determined that the Veteran’s description of functioning in various domains of his life did not indicate that his mental health condition has worsened since his last exam in July of 2008. Specifically, the Veteran described a very active life with frequent traveling, time with his family, good and active relationships with his wife and children, and denied any impairments in his functioning. The Veteran reported some issues with depression and memory, likely related to his schizophrenia versus as separate disorders, but that it had minimal impacts on his functioning. As a result, the VA psychologist opined that it is less likely than not that Veteran’s Schizophrenia and related functioning have worsened since his last VA examination in July of 2008. A May 2017 VA pain management psychology evaluation note reflect that the Veteran denied experiencing hallucinations or other psychotic symptoms since his military service. The VA psychologist noted the Veteran was hearing the voice of his deceased son. However, the VA psychology determined, “[g]iven [the] [V]eteran’s cultural background, it is possible that his hearing his son’s voice is culturally appropriate response to grief.” Furthermore, it was noted that despite his pain, the Veteran was still actively engaged in his life, attending church weekly, traveling abroad yearly, and spending time with his wife and friends. According to the August 2017, VA psychology note, the Veteran reported what the VA psychologist described as: [W]hat appears to be multiple psychotic breaks during his service while stationed in Korea. He was very guarded, but through extensive questioning and support in the difficulty of discussing this topic, he described auditory hallucinations (hearing people speaking in the distance, denied command hallucinations), aberrant behavior including breaking a mirror in his barracks and acting out at a social gatherings, and significant stretches of time that is “lost” with no memory of events that were later conveyed to him either by friends or medical staff. The Veteran reported he had not recently experienced events of this nature but varied between reporting the last incident was during his military service to reporting this last incident was two to three years prior. Additionally, it was noted that the Veteran became “highly irritable when he drinks” and he stated he only experienced hallucinations when he was drinking. A mental status examination at this time revealed the Veteran was alert; cooperative; and oriented to person, place, time, and situation. The Veteran maintained adequate eye contact, was dressed and groomed appropriately, his speech was within normal limits, and his thought content/process was logical and linear. No aberrant motor disturbances were noted. The Veteran denied auditory hallucinations, visual hallucinations, and delusional ideation/paranoia. The VA psychologist noted the Veteran was independent in his activities of daily living and finances. In a November 2017 VA psychological evaluation, it was noted that the Veteran had earned a GED after completing a high school education. His work history included duties as a paratrooper while in the Army and Air Force. He then worked as an electrician in his civilian life, retiring in 2006. Based on his education and vocational histories, it was estimated that the Veteran’s baseline level of function was in the below average to average range. A number of cognitive complaints have been documented since 2000. Most complaints were related to memory and executive function. After completing a Mattis Dementia Rating scale, the Veteran’s overall cognitive performance was in the moderately impaired range. Veteran also completed the Trail Making Tests which assessed the speed of information processing and executive functioning. His scores on these assessments were based on normative data drawn from individuals in his level of education, age, race, and sex. On a simple visual sequencing task (TMT-A), the Veteran’s speed of performance fell in the normal range. He made 0 errors on this task. He also performed in the normal range on a more complex sequencing task involving cognitive set-shifting, visual scanning, and attention (TMT-Part B), making 0 errors on that task as well. VA psychology notes from June 2018 and October 2018 revealed there was no evidence of confusion or gross disorientation. The Veteran was polite and cooperative, easily engaged, and maintained fair eye contact. No aberrant motor movements were noted. Additionally, the June 2018 VA psychology note indicated the Veteran’s thought process was logical and coherent. There was no suicidal or homicidal ideation, or presence of psychotic processes, either voiced or evident. According to a July 2019 VA psychology note, the Veteran felt he was improving cognitively since an October 2018 stoke. A mental status examination revealed the Veteran was alert with no evidence of confusion or gross disorientation. The Veteran was easily engaged and maintained appropriate eye contact. He ambulated independently without aberrant motor movements noted. The Veteran’s thought process was logical and coherent. There was no evidence of suicidal or homicidal ideation or psychotic processes, voiced or evident. The Veteran stated he was open to discussion of relaxation exercises and daily practice of them and discussed his commitment to exercise/rehabilitation since stroke. He felt his cognition was slowly improving over time as well. He was diagnosed with mild neurocognitive Disorder as a result of his stoke. The Veteran was seen for continued monitoring of mood, cognition, and function in the context of continued stroke recovery. He felt he was generally improving with regard to cognition and function, although he continued to experience depressed mood. He attributed fluctuations in mood mostly to his physical health/pain experience. The lay statements from his wife and granddaughter emphasized that his mental state has significantly affected his ability to communicate. They have witnessed his severe memory loss as he forgets daily activities, names, important events, or even take his medication. He has become obsessive and even delusional at times. He displays inappropriate emotion reactions, especially towards the death of his son, and has become very isolated. There is no question, following a review of these statements that the Veteran has struggled with his mental health since his retirement, but the fact remains that he was assigned a high compensable rating for this impairment. Ultimately, it must be shown that these symptoms precluded the Veteran from obtaining or maintaining substantially gainful employment. While the lay statements do suggest that the Veteran had significant difficulties, when considered in conjunction with the medical evidence of record, it is simply not shown that the Veteran was unable obtain or maintain substantially gainful employment prior to August 2019. The Veteran’s VA medical records prior to August 23, 2019, taken in total, do not suggest that he was actually unable to obtain or maintain substantially gainful employment solely as a result of his service-connected disabilities. Likewise, VA examiners have opined that the Veteran was capable of at least sedentary work, meaning work without significant lifting requirements. The Board emphasizes that there are multiple persuasive medical determinations that weigh against the Veteran’s claim and are found to have great probative value. The objective medical evidence of record prior to August 23, 2019, have consistently reflected that the Veteran’s disabilities, which resulted in some work limitations, would not preclude work entirely. While the Veteran has experienced cognitive difficulties, records reflect that the Veteran reported improvement, his thought content and processes were logical and linear, and without aberrant motor movements. The Board cannot ignore Dr. K.B’s determination that the Veteran has been unemployable since March 2008 as a result of his mental health symptoms to include persistent delusions and hallucinations, poor sleep, poor interpersonal skills, and irritability has significantly impacted his employment. However, this is not supported by the Veteran’s VA treatment records. The Board notes that the value of a physician’s statement is dependent, in part, upon the extent to which it reflects “clinical data or other rationale to support his opinion.” Bloom v. West, 12 Vet. App. 185, 187 (1999). Thus, a medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). The record reflects that the Veteran has consistently denied experiencing, and the VA treatment records support, persistent delusions or hallucinations since his active military service. The Veteran has reported hearing voices of his deceased son but the VA psychologists indicated it was an appropriate reaction of grief and despite difficulties he continued to be actively engaged with his family and friends, and was able to handle his finances and activities of daily living. Furthermore, it is consistently noted that the Veteran became irritable only when he consumed alcohol. Simply, the objective medical evidence of record does not support Dr. K.B.’s determination that the Veteran’s persistent delusions and hallucinations, poor sleep, poor interpersonal skills, and irritability significantly impacted his employment. Therefore, the Board affords Dr. K.B.’s determination little probative value as it is largely inconsistent with information in VA treatment records. Rather, the Board finds records made in the course of treatment more probative than those submitted in the pursuit of monetary compensation. Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (a pecuniary interest may be found to affect the credibility of the statements presented). The Veteran and his family have maintained that he is unemployable. However, the medical professionals who examined the Veteran were aware of his contentions, but simply found that his service-connected disabilities did not appear to be of such severity to render him unable to obtain or maintain substantially gainful employment. As such, TDIU is not warranted. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) (“applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner”). The Board acknowledges that the Veteran is competent to report symptoms of his disabilities and how it affected his employability. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). Additionally, he is credible in his reports of symptoms and their effect on his activities. Moreover, the Veteran has been examined by VA on a number of occasions and was treated by the VA healthcare providers. However, as discussed, the examinations have not found such functional limitation as a result of the Veteran’s service-connected disabilities that the Board believes that he is actually unable to obtain or maintain substantially gainful employment because of his service-connected disabilities. That is, the Board finds the findings and opinions of the VA examiners and VA healthcare providers during the course of the Veteran’s treatment to be the most competent and probative evidence of record, and therefore, they are accorded greater weight than the Veteran’s subjective complaints. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). Accordingly, TDIU on an extraschedular basis prior to August 23, 2019, is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Yoo, 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.