Citation Nr: 21015341 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 11-06 554 DATE: March 17, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) prior to February 11, 2016 on an extraschedular basis, is granted. FINDING OF FACT The record is at least in equipoise as to whether the Veteran is able to secure or follow a substantially gainful occupation prior to February 11, 2016. CONCLUSION OF LAW The criteria for a TDIU on an extraschedular basis prior to February 11, 2016 are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1982 to July 1986. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to a TDIU from February 11, 2016 was granted in a September 2019 rating decision, and the issue of entitlement prior to February 11, 2016 was previously remanded by the Board in January 2020. Entitlement to a TDIU prior to February 11, 2016 The Veteran contends that his service-connected disabilities preclude him from working prior to February 11, 2016. The Veteran’s July 2010 Notice of Disagreement stated that due to his post-traumatic stress disorder (PTSD) and back pain, he could not hold gainful employment. He alleged that he could not stand for any period of time and that he could not stand the stress of work due to anxiety. He stated that he took 19 pills just to get through the day. He has also contended that his medications preclude work. The record contains several lay witness statements from November 2009 that address the Veteran’s function. His ex-wife stated that the Veteran stumbles and has to use one arm to lift up the other. She stated that he cannot work because he is off-balance, and further stated that he falls at night when going to the bathroom. This information was supported by a statement from his stepdaughter. 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 disabilities 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). 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. See 38 C.F.R. § 4.16 (b). The Board does not have the authority to assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Rating boards will refer to the Director of the Compensation Service for extraschedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16 (a). 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 period for appellate consideration is prior to February 11, 2016. For that time, the Veteran is service-connected for the following disabilities: PTSD (rated 50 percent from June 23, 2009); degenerative arthritis of the lumbar spine (rated 10 percent from June 23, 2009); hypertension (rated noncompensable from June 23, 2009); tinnitus (rated 10 percent from February 15, 2012); and bilateral hearing loss (rated noncompensable from February 15, 2012). The Veteran’s combined rating is 60 percent from June 23, 2009. Therefore, the schedular criteria for a TDIU are not met. See 38 C.F.R. § 4.16 (a). The matter was referred to the Director of the Compensation Service for extraschedular consideration. In a November 2020 memorandum, the Director denied entitlement to TDIU on an extraschedular basis, noting that despite some functional limitations, the preponderance of evidence did not show that the Veteran is unable to obtain or maintain gainful employment due to his service-connected conditions. Since the Veteran's claim of entitlement to a TDIU on an extraschedular basis was denied by the Director, the Board may address the merits of the Veteran's claim for entitlement to a TDIU on an extraschedular basis. Wages v. McDonald, 27 Vet. App. 233, 239 (2015). With regard to the Veteran’s work history, the record reflects that the Veteran worked as a self-employed stone mason for many years until 2006, and has a high school education. The Board acknowledges that Social Security Administration (SSA) granted disability benefits in 2009 based on a primary diagnosis of carpal tunnel syndrome and a secondary diagnosis of hypertension. However, the Board is not bound by SSA's determination regarding disability or unemployability because there are significant differences in the definition of "disability" under the Social Security and VA systems. See, e.g., Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). VA may only consider the effect of service-connected disabilities on one's ability to secure or follow a substantially gainful occupation. See 38 C.F.R. § 4.16. The SSA’s mental functional capacity report showed moderate limitations in understanding, remembering, and carrying out detailed instructions, maintaining concentration for extended periods, completing a normal workweek without interruption from symptoms, the ability to interact with the public, getting along with coworkers, and responding to changes in a work setting. The SSA determined that the Veteran could work in a setting that limited personal interactions and without high production quotas or fast pace. With regard to his physical residual capacity, it was determined that the Veteran could occasionally lift 20 pounds and frequently lift 10. He could stand, walk, or sit 6 hours out of an 8-hour workday. At the Veteran’s August 2009 SSA psychiatric evaluation, he reported feeling too anxious to focus and concentrate at work. The Veteran’s speech was impacted by his anxiety and was tangential. The examiner noted that the Veteran was briefly hospitalized for psychiatric issues in December 2008. He was depressed to a moderately severe degree on examination. He was noted to have difficulty with short term memory functions and had difficulty with attention and concentration. The examiner stated that the Veteran would have marked limitations with regard to maintaining attention and concentration while working. He had mild limitations with following simple verbal directions. The examiner also noted that the Veteran would have extreme limitations relating to others in a work setting and his ability to cope with work stress. An October 2009 note from the Veteran’s primary care physician, who manages the Veteran’s psychiatric medications, stated that the Veteran is totally and permanently disabled due to PTSD and spinal disease. A March 2010 VA examination showed the Veteran reported that he did not get into fights with anyone at work in the past but did not have friends. He stated that he would sometimes stay home due to flashbacks and reported being overly cautious about safety issues. He stated that he did most of the household chores, including getting wood for his furnaces. He did the shopping, managed finances, and attended church. He stated that he enjoyed gardening and taking care of his wife. He stated that he has no friends but had frequent contact with his children. He showed normal behavior on examination and had good communication, although thought processes were tangential. The examiner found that his symptoms had a moderate to severe impact on social and occupational functioning, and the Veteran noted that he was short with his brother while working in the past due to demanding perfection. The examiner noted that tangential thought processes decrease communication and effectiveness in work settings. In March 2011, the Veteran’s VA psychiatrist opined that it was his professional opinion that he was so disabled from his PTSD that he cannot work. That examiner noted that the Veteran was very on edge because of anxiety and irritability related to his PTSD. The Board notes that the Veteran’s February 2016 VA examination, which resulted in a higher (70 percent rating) for PTSD, indicated that the Veteran had an occupational and social impairment with deficiencies in most areas, including work. With regard to the Veteran’s lumbar spine disability, an April 2010 VA back examination found that the condition interferes with the Veteran’s occupational functioning in that work increases his pain. It was noted that his condition interfered with daily activities such as mowing grass because he had difficulty even using a riding lawnmower. Given the above, despite not meeting the schedular requirements for a TDIU, the Board finds that the evidence is at least in equipoise as to whether he is able to secure and follow a substantially gainful occupation due to his service-connected disabilities, in particular his PTSD. The record shows three different medical professionals indicating significant limitations on employment due to his psychiatric disability. Two of those medical professionals who regularly treat the Veteran opined that he was unable to work. While those opinions are not supported by substantial rationale, the record as a whole suggests that the Veteran has difficulty concentrating, handling work stress, and interacting with others to a degree that would preclude him from employment. The Veteran has a high school education, which can often provide entry into non-physical jobs. However, the Veteran’s only prior work history appears to be in jobs that required physical labor. The record shows that the Veteran appears to have little problem engaging in physical chores and activities in the confines of his home, and even shopping. However, the record does not show that he could perform such tasks in a work setting that required normal work stress. In affording the benefit of the doubt to the Veteran, entitlement to a TDIU prior to February 11, 2016 is granted. See 38 C.F.R. § 4.16; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Baker, 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.