Citation Nr: 21015075 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 12-26 037 DATE: March 16, 2021 ORDER A total rating based on individual unemployability due to service-connected disability (TDIU) on an extraschedular basis, prior to February 11, 2009, is granted. FINDING OF FACT The most probative evidence is at least in equipoise as to whether the Veteran was unable to secure or follow substantially gainful employment due solely to service-connected disability, prior to February 11, 2009. CONCLUSION OF LAW With resolution of reasonable doubt in the Veteran’s favor, the criteria for TDIU on an extraschedular basis, prior to February 11, 2009, are met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1970 to November 1971. The Board remanded this claim for additional development in November 2020. There has been substantial compliance with the remand and the Board will proceed with adjudication. Stegall v. West, 11 Vet. App. 268 (1998). TDIU on an extraschedular basis, prior to February 11, 2009. The Veteran asserts that his service-connected posttraumatic stress disorder (PTSD) and coronary artery disease (CAD) prevented substantially gainful employment prior to February 11, 2009. 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. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides a rating of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. In this case, the Veteran does not meet the schedular criteria for TDIU consideration under 38 C.F.R. § 4.16(a). He is service-connected for CAD, evaluated as 10 percent from March 27, 2002 to October 2012; PTSD, evaluated as 50 percent disabling from March 27, 2002, and 70 percent disabling from February 11, 2009; and residual scar, coronary artery bypass grafting associated with CAD, evaluated as noncompensable from March 27, 2002. The Veteran’s combined evaluation is 60 percent from March 27, 2002, and 70 percent from February 11, 2009. An extra-schedular TDIU may be assigned in exceptional cases to a Veteran who is found to be unemployable because of service-connected disabilities, but whose disabilities do not meet the percentage standards set forth in § 4.16(a). See 38 C.F.R. § 4.16(b). The Board is required to obtain the decision by the Director, Compensation Service, (Director) before awarding extraschedular TDIU benefits in the first instance; however, the Board is not bound by the Director’s decision or otherwise limited in its scope of review of that determination. The 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). The Director reviewed the evidence and concluded that entitlement to TDIU on an extraschedular basis, prior to February 11, 2009, was not established. See January 2021 VA memorandum. Turning to the evidence of record, on an August 2007 VA Form 21-8940 the Veteran stated that his service-connected PTSD prevented him from securing or following any substantially gainful employment. He last worked full-time, and became too disabled to work, on June 1, 2005. The Veteran worked as a carpenter for S. C. from January 2002 to December 2003, for himself from January 2004 to December [2005], and for S. C. from January to December 2001. The Veteran had 4 years of high school education with no other education or training before or since becoming too disabled to work. He had not tried to obtain employment since becoming too disabled to work. He stated that he quit work in June 2005. On an April 2010 VA Form 21-8940 the Veteran stated that his service-connected PTSD and heart disease prevented him from securing or following any substantially gainful employment. He last worked full-time, and became too disabled to work, on May 5, 2005. His occupation that year was carpenter. The Veteran worked for J. M. from May 2003 to June 2005 in an unidentified type of work, for himself in 2006 and 2007 in an unidentified type of work, and for W. H. as a carpenter from May 2008 to June 2009. The Veteran had 4 years of high school education with no other education or training before or since becoming too disabled to work. Since becoming too disabled to work, he had tried to obtain employment from three employers in 2009 and 2010. On a September 2013 VA Form 21-8940 the Veteran stated that his service-connected PTSD and ischemic heart disease prevented him from securing or following any substantially gainful employment. He last worked full-time on June 15, 2006, and became too disabled to work on July 15, 2007. The Veteran worked for himself from June 2000 to June 2004 in an unidentified type of work, and for W. H. in construction from July 2005 to June 2007. The Veteran had 4 years of high school education with no other education or training before or since becoming too disabled to work. He had not tried to obtain employment since becoming too disabled to work. In a July 2015 statement, the Veteran explained the overlapping and confusing dates in the VA Form 21-8940s he submitted. He worked part-time and odd pickup jobs from the time he submitted his first application for VA benefits in March 2002 to either 2008 or 2009. He also acknowledged that he had stated that between 2001 and 2009 he was self-employed and worked for other contractors. He explained that sometimes when he worked for other contractors he was paid in cash or by check and had the responsibility to pay his taxes. So, there were times he considered himself their employee but also self-employed since he had to pay his own taxes. There were also times he did some jobs on his own. He did the best he could to remember the dates that he worked to put down on VA’s forms, but his memory was not that good and he did not keep any records to go by. Even when he was able to work a little bit between 2001 and 2009, it was nothing like he was used to working. He thought it was in 2007 when his ability to work really started going downhill. The Social Security benefits he received were not based on disability. They were due to age. The report of a March 2003 VA PTSD examination sets forth the Veteran’s PTSD symptoms and relates that at this time he should be considered totally disabled. The report of a July 2006 VA PTSD examination sets forth the Veteran’s PTSD symptoms and relates that at the present time the Veteran was not considered employable. An October 2007 VA PTSD examination report sets forth the Veteran’s PTSD symptoms and relates that it appeared that he had not been in the workforce in the last year to two years because of PTSD symptoms, and when he did work he estimated that over a 30-year period he lost approximately a year’s worth of time from work because of PTSD symptoms. He also reported that he was probably fired from a job because he could not get along with someone. The examiner stated that this would indicate occupational impairment and suggest that the Veteran's PTSD symptoms resulted in decrease in work efficiency and there were intermittent periods of inability to perform the occupational tasks at that time. The report of a May 2010 VA PTSD examination reveals that the Veteran explained that his current unemployment was due to the fact that there was no work in the construction business as of late. The examiner summarized that the Veteran did not work but this was due to the fact that he lost his contract when the housing market crashed. The Veteran questioned whether he could muster the energy and motivation to work again, even if the market returned. The examiner stated that basically there was no evidence that the Veteran could not work due to PTSD symptoms. She observed that the Veteran remarked that work was always manageable for him because he worked with just two or three people, and there was not much need for sustained interaction. Records from the Social Security Administration (SSA) include a September 2012 Disability Determination and Transmittal that held that the Veteran was not disabled through June 30, 2011. A February 2014 Decision found that the Veteran did not engage in substantial gainful activity during the period from his alleged onset date of December 31, 2008 through his date last ensured of June 30, 2011. Through the date last insured, the Veteran had the medically determinable impairments of history of CAD with bypass and PTSD. Through the date last insured, the Veteran did not have an impairment or combination of impairments that significantly limited the ability to perform basic work-related activities for 12 consecutive months, and therefore the Veteran did not have a severe impairment or combination of impairments. The Veteran was not under a disability, as defined in the Social Security Act, at any time from December 31, 2008, the alleged onset date, through June 30, 2011, the date last insured. The actual decision was that the Veteran was not disabled through June 30, 2011, the last date insured. In a December 2018 sworn affidavit, received in December 2019, the Veteran stated that his service-connected PTSD and CAD have prevented employment since March 27, 2002. He stated that his work experience has been in construction. He had struggled to earn more than minimal income since service. His highest earning was $10,915 in 2003, whereas in most years he had only earned between $3000 to $5000. He was not able to earn any money in 2006 and 2009. He had not been able to maintain a job in which he earned more than minimal income since at least 2002. He stated that since bypass surgery in 1999 for CAD, he got fatigued really easily, which made his workdays even more difficult to cope with. Since at least 2002, he had also had shortness of breath and chest pain due to CAD, which only made his workday more difficult to get through and distracted him on a worksite. In 2002, he increasingly struggled to handle everyday stress on the job and lashed out at co-workers. He tried to walk away afterward to cool off. He could not stand to be around people at times. He finally gave up trying to work in 2008 due to his symptoms. Between 2002 and 2008, he worked part-time and odd jobs. Between June 2007 to December 2008, he worked construction building houses. He was in charge of a group of two or three people on the sites. He had to quit after less than a year on the job due to increasing problems with co-workers, difficulty concentrating and significant fatigue from physical labor. He only earned $3850 and $3670, respectively. In a December 2018 affidavit, received in December 2019, the Veteran’s wife stated that throughout the early 2000s, the Veteran was working construction. All she remembered about the experience was that he complained a lot about being tired. He did not talk to her about why he stopped trying to hold on to a job in 2008. After 2008, he did not try to get another job. In a June 2019 Vocational Assessment, a private Vocational Consultant relates that she interviewed the Veteran by phone and reviewed his entire VA claims file. She set forth relevant portions of his work history, education and VA examination reports. She stated that in her professional opinion it was more likely than not that the Veteran had been unable to secure and follow substantially gainful employment due to his service-connected PTSD and CAD since at least March 2002. The Veteran's medical record, as well as his self-report, depicted symptoms incongruent with the requirements of competitive employment. After careful review of the record, the Board finds that the most probative evidence is at least in equipoise as to whether the Veteran was unable to secure and follow a substantially gainful occupation due to his service-connected disabilities, prior to February 11, 2009. In reaching this determination, the Board observes that the SSA September 2012 Disability Determination and Transmittal and February 2014 Decision fail to show that the Veteran’s PTSD and CAD rendered him unemployable prior to February 11, 2009. While these decisions are probative evidence in regard to TDIU, they are not dispositive or binding on VA since the agencies have different disability determination requirements. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). The Board also observes that the Veteran’s contemporary remarks during the May 2010 VA examination (that he was not working due to a market crash and work had been manageable for him despite PTSD) are evidence that his service-connected disabilities did not make him unable to secure and follow substantial gainful employment prior to February 11, 2009. They contradict his assertions elsewhere in the record that he was unable to work due to service-connected PTSD and CAD. At the same time, the Board finds that the Veteran’s July 2015 statement and his wife’s December 2018 sworn affidavit provide detailed and compelling evidence that his PTSD and CAD prevented him from securing and following substantial gainful employment prior to February 11, 2009. The Board affords high probative weight to the March 2003 and July 2006 VA examination reports, which found the Veteran unemployable, and the October 2007 VA examination report, which described the negative effects of the Veteran’s PTSD on his employability in detail. As the examiners reviewed the Veteran’s symptoms and provided medical opinions based on their professional expertise, the Board affords their findings high probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Similarly, the Board affords the June 2019 private Vocational Assessment high probative weight. Id. The law in a situation such as the Veteran’s is clear. Pursuant to the “benefit-of-the-doubt” rule, where there is “an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter,” the Veteran shall prevail upon the issue. 38 U.S.C. § 5107(b). The Board concludes that the most probative evidence of record is at least in equipoise as to whether the Veteran was unable to secure and follow a substantially gainful occupation due to his service-connected disabilities, prior to February 11, 2009. Thus, with resolution of reasonable doubt in the Veteran’s favor, the Board finds that entitlement to TDIU on an extraschedular basis, prior to February 11, 2009, is warranted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) (“[T]he ‘benefit of the doubt’ standard is similar to the rule deeply embedded in sandlot baseball folklore that ‘the tie goes to the runner’.... [I]f... the play is close, i.e., ‘there is an approximate balance of positive and negative evidence,’ the veteran prevails by operation of [statute].”). K. MARENNA Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Davitian, 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.