Citation Nr: 21013938 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 13-16 432 DATE: March 10, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU) prior to November 13, 2013, on an extraschedular basis, is granted. FINDING OF FACT For the entire appeal period, the Veteran’s service-connected acquired psychiatric disorder precluded her from securing or maintaining a substantially gainful occupation due to difficulties collecting her thoughts and presenting the information in an organized, sequential manner, a “very poor” ability to deal with stressful work circumstances and being highly distractible with difficulty in sustaining attention and concentration to complete tasks, especially tasks with any detail. . CONCLUSION OF LAW The criteria for entitlement to a TDIU rating prior to November 13, 2013, on an extraschedular basis, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1976 to June 1978. 1. Entitlement to an extraschedular TDIU rating prior to November 13, 2013, Entitlement to a total rating must be based solely on the impact of a veteran’s service-connected disabilities on his ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, 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). For VA purposes, the term “unemployability” is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Individual unemployability must be determined without regard to any nonservice-connected disabilities or a veteran’s advancing age. 38 C.F.R. §§ 3.341(a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). For a veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which places him in a different position than other veterans with the same disability rating. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough to prove unemployability. A high 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 can find employment. Van Hoose, 4 Vet. App. at 363. Thus, the Board must evaluate whether there are circumstances in a veteran’s case, apart from any non-service-connected conditions and advancing age, which would justify a total disability rating based upon individual unemployability. 38 C.F.R. §§ 3.341(a), 4.16(a), 4.19. See Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). A veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Whenever there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b). Total disability ratings for compensation based on individual unemployability may be assigned where the scheduler rating is less than total, when it is found that the disabled person is 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. §§ 3.340, 3.341, 4.16(a). Where these percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered 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). As a preliminary matter, the Veteran has been granted entitlement to a TDIU rating since November 13, 2013. See September 2019 Board Decision; April 2017 Rating Decision. Prior to November 13, 2013, the Veteran is service-connected for an acquired psychiatric disorder rated as 50 percent disabling. Therefore, prior to November 13, 2013, the Veteran does not meet the schedular criteria for a TDIU rating. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In a December 2020 memorandum, the Director of Compensation Services denied the Veteran’s claim for a TDIU rating on an extraschedular basis. As the Board is not bound by the opinion of the Director, it must conduct a de novo review of the issue of an extraschedular award of TDIU prior to November 13, 2013. Wages v. Shinseki, 27 Vet. App. 233 (2015). In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the U.S. Court of Veterans Appeals (now the U.S. Court of Appeals for Veterans Claims) (CAVC) discussed the meaning of “substantially gainful employment.” In this context, it noted the following standard announced by the United States Federal Court of Appeals in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): It is clear that the claimant need not be a total ‘basket case’ before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. CAVC has defined being unable to secure and follow a substantially gainful occupation as having an 1) an economic component of 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 2) a non-economic component of the individuals ability to secure or follow that type of employment; factors to consider include: the Veteran's history, education, skill, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Ray v. Wilkie, 31 Vet. App. 58, 62 (2019). Factors that may be relevant include, but are not limited to, the Veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and whether the Veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity.) Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. 38 U.S.C. § 1154 (a); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Subsequent to service, the Veteran worked as a correctional officer; a mental health home provider; at a sewing factory; at a security corporation; at a county jail; and as an assistant manager. She last worked in May 2002. See August 2004 Social Security Administration (SSA) Memorandum; August 2016 TDIU Application. Historically, the Veteran’s VA medical records reflect her treatment for major depressive disorder as early as 2004 wherein a treating clinician described her life as a “stalemate of depressive wretchedness.” It was noted that all efforts at prescription and placebo medications had been ineffective. She was assigned a GAF score of 55. In May 2004, the Veteran underwent a Vocational and Psychological Evaluation report for purposes of determining her eligibility for unemployment benefits with the Social Security Administration. On examination, the Veteran was described as gregarious and agitated. She had trouble sustaining attention and concentration on tasks given to her. She had a work history as a waitress, home provider, security guard, deputy sheriff and store manager trainee. It was noted that the Veteran experienced difficulties collecting her thoughts and presenting the information in an organized, sequential manner. In an evaluation of her vocational sphere of functioning, the Veteran had a “very poor” ability to deal with stressful work circumstances. She was oriented in all spheres, but highly distractible with difficulty in sustaining attention and concentration to complete tasks, especially tasks with any detail. The Veteran filed her claim for service-connection in April 2012. From October 2011 through April 2012, the Veteran underwent weekly VA psychological treatment, including psychological group treatment at the Saint Louis VA pain rehabilitation center. During this time, VA treatment records reflect psychiatric symptoms that included chronic poor sleep and significant sleep problems; frequent nightmares; intrusive thoughts; hypervigilance; impaired short term memory; poor appetite; low energy; poor concentration; and poor interpersonal relationships. During that time, social situations caused the Veteran to feel anxiety, self-blame, and inadequacy. See October 2011-April 2012 VA Treatment Records. She had been married five times. See November 2011 VA Treatment Records. During that same period of time, the Veteran exhibited no hallucinations or paranoia, and had no suicidal ideation. Further, during treatment, she indicated having a romantic interpersonal relationship; displayed some insight; noted interpersonal family relationships had improved; and engaged in self-care and grooming, including getting her hair cut and shopping for clothes. See October 2011-April 2012 VA Treatment Records. Treatment resulted in significant improvements in functional status and psychosocial functioning. Id. While undergoing VA treatment, the Veteran’s GAF score steadily increased, from a low of 60 in November 2011 to 67 in April 2012. Other VA treatment notes during the relevant time period also indicate insomnia; moderate symptoms including fatigue, change in sleeping patterns, and past failure; mild symptoms including loss of pleasure, guilty feelings, self-dislike, self-criticalness, crying, agitation, loss of interest, indecisiveness, loss of energy, changes in appetite, and concentration difficulty. See, e.g., November 2012 VA Treatment Records. April 2013 VA treatment records reflect a GAF score of 65. July 2013 VA treatment records reflect that in the 12 months since April 2012 psychological group treatment program wrapped up, the Veteran had retained most of the improvements gained. She had follow-up appointments in August 2013 and October 2013, and had a GAF score of 63. On November 13, 2013, the Veteran called the Saint Louis VAMC and cancelled her December 2013 appointment. She did not attend another follow-up appointment for her psychiatric disorders until July 2014. During an October 2013 VA examination, the examiner diagnosed the Veteran with depressive disorder and personality disorder, but determined she did not meet the criteria for a diagnosis of PTSD. Upon examination, her symptoms included a stable but depressed mood and chronic sleep impairment. The Veteran reported that she had weekly outings with her sister and daughter, and volunteered at a horse rescue. The examiner determined that the Veteran exhibited 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 conversation. The Veteran’s GAF score was 62. During an April 2017 VA examination, the examiner noted that the Veteran’s nonpsychiatric disabilities had prevented her from working since 2002. The examiner also noted a lack of information made it more difficult to determine the current impact of the Veteran’s symptoms on her occupational functioning. However, the Board notes that the level of the Veteran’s occupational functioning in 2017 is not currently at issue. SSA records indicate that the Veteran has been disabled since May 2002 due to nonservice-connected interstitial cystis, mixed urinary incontinence and frequency, and degenerative disc disease in addition to her service-connected acquired psychiatric disorder. See November 2004 SSA Decision. Importantly, a Vocational Expert solely evaluating the impact of the Veteran’s psychiatric disability on her employability found that the Veteran had difficulties collecting her thoughts and presenting the information in an organized, sequential manner, had a “very poor” ability to deal with stressful work circumstances and being highly distractible with difficulty in sustaining attention and concentration to complete tasks, especially tasks with any detail. This expert opinion reflects an inability to maintain substantially gainful employment in any vocation consistent with the Veteran’s educational and vocational background. There is no direct, competent opinion reflecting that the Veteran’s limitations would still allow her to obtain and maintain substantially gainful employment. Resolving reasonable doubt in favor of the Veteran, the Board finds that, for the entire appeal period, the Veteran’s service-connected acquired psychiatric disorder precluded her from securing or maintaining a substantially gainful occupation due to difficulties collecting her thoughts and presenting the information in an organized, sequential manner, a “very poor” ability to deal with stressful work circumstances and being highly distractible with difficulty in sustaining attention and concentration to complete tasks, especially tasks with any detail. As such, TDIU on an extraschedular basis is granted. See Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (“By requiring only an ‘approximate balance of positive and negative evidence’..., the nation, ‘in recognition of our debt to our veterans,’ has ‘taken upon itself the risk of error’ in awarding... benefits.”) T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Howell, 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.