Citation Nr: 21015803 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 09-12 237 DATE: March 18, 2021 ORDER Entitlement to a total disability based on individual unemployability (TDIU) on a schedular basis for the period from October 15, 2015 to May 16, 2016 and on an extraschedular basis prior to October 15, 2015 is granted. FINDINGS OF FACT 1. For the period from October 15, 2015 to May 16, 2016, the Veteran’s service-connected disabilities precluded from him from obtaining or maintaining any gainful employment consistent with his education and occupational experience. 2. Prior to October 15, 2015, the Veteran’s service-connected disabilities rendered him unemployable. CONCLUSIONS OF LAW 1. For the period from October 15, 2015 to May 16, 2016, the criteria for TDIU on a schedular basis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16, 4.17, 4.18, 4.19. 2. For the period prior to October 15, 2015, the criteria for entitlement to a TDIU on an extraschedular basis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16, 4.17, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from June 1972 to November 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2010, the Veteran testified before a Veterans Law Judge who is no longer employed at the Board. In a June 2020 Board letter, the Veteran was afforded an opportunity to have another hearing held by another Veteran Law Judge. In a June 2020 correspondence, the Veteran responded that he did not wish to have another Board hearing. This matter was previously before the Board in May 2011, November 2017, May 2019, and November 2020. In the November 2020 Board decision, the Board granted entitlement to TDIU, effective from May 16, 2016 but referred the issue of whether TDIU was warranted prior to May 16, 2016 to the Director for Compensation Service for extraschedular consideration. Upon receipt of the advisory opinion from the Director for Compensation and Pension, the RO denied the claim in a January 2021 supplemental statement of the case (SSOC). This matter is again before the Board for adjudication. 1. Entitlement to an TDIU on an extraschedular basis prior October 15, 2016 is granted. A total rating based on unemployability is warranted when the evidence shows that the veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2016). Generally, a total rating for compensation may be assigned where the schedular 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. Part 3, §§ 3.340, 4.16(a). However, a total rating based on individual unemployability may still be assigned to a veteran who fails to meet the percentage standards if he is unemployable by reason of his service-connected disabilities. If a Veteran is found to be unemployable solely due to his service-connected disabilities, then the case is to be referred to the Director of Compensation and Pension for extraschedular consideration. The question therefore becomes whether or not the Veteran is unable to secure or follow a substantially gainful occupation solely due to service-connected disabilities. 38 C.F.R. § 4.16 (b). The issue is not whether the Veteran can find employment generally, but whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Consideration may be given to the Veteran’s education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose, 4 Vet. App. at 363. The Court in Ray further defined “substantially gainful employment,” holding that there is both an economic and a noneconomic component; 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,” while the noneconomic component requires consideration of a veteran’s ability to secure or follow that type of employment. Id. The Court set forth a number of factors to consider in making the latter determination, including the following: the veteran’s history, education, skill, and training; his or her physical abilities, including any audio or visual limitations, as well as limitations in lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching; and his or her mental ability, including limitations in memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. In this matter, service connection has been established for the Veteran’s PTSD with an initial evaluation of 30 percent from February 27, 2002 to January 18, 2007. On January 18, 2007, he was assigned a 50 percent disability rating for his PTSD. From May 16, 2016, the Veteran was assigned a 70 percent disability evaluation for his PTSD. In its November 2020 decision, the Board also granted service connection for an obstructive sleep apnea disability and he was assigned a 50 percent disability rating effective from October 15, 2015. His combined evaluation were 30 percent from February 27, 2002 to January 18, 2007, 50 percent from January 18, 2007 to October 15, 2015, 80 percent from October 15, 2015 to May 16, 2016, and 90 percent from May 16, 2016. As an initial matter, the Board finds that the proper date for consideration in this matter should be October 15, 2015, the date the Veteran met the schedular criteria for TDIU. As previously stated, the Board granted service connection for his obstructive sleep apnea disability and assigned a 50 percent rating effective on October 15, 2015. This rating combined with the Veteran’s 50 percent disability rating for his PTSD resulted in a combined evaluation of 80 percent from October 15, 2015. As such, the Veteran was entitled to a TDIU from October 15, 2015. Thus, the remaining question is whether he is entitled to a TDIU prior to October 15, 2015. In this regard, prior to October 15, 2015, the Board finds that the Veteran was service connected solely for his PTSD rated at 50 percent. As he had only one service-connected disability rated at less than 60 percent disabling, he did not meet the schedular criteria under 38 C.F.R. § 4.16 prior to October 15, 2015. Nonetheless, he is still eligible for TDIU on an extraschedular basis if the evidence supports his claim. Upon review of the evidence, the Board finds that the Veteran’s PTSD symptoms precluded him from obtaining or maintaining substantially gainful employment prior to October 15, 2015. A review of the claims file shows that the Veteran completed high school and had one to one and a half year of college education in graphic arts design. However, no college degree was obtained. He has not undergone any further education or training. According to the Veteran’s report in his VA examinations and VA treatment records, he last engaged in substantially gainful employment in 2002. The Veteran’s reported work history consisted of working in about 9 or more jobs since his separation from military service. See March 2002 VA treatment records. More specifically, the Veteran elaborated in a June 2003 VA examination that he worked three years for a chemical plant prior to being laid off. He spent two or three years working at a gas station and then also worked at a tool production company for about three years. He also worked four years at a Cleveland airport as a parking garage cashier and part-time as janitor at a community college. He was terminated from his job at the Cleveland airport following an argument with another cashier. He further reported being employed at a Citgo gas station from 1999 until his accident in November 2000. The Veteran further reported receiving about $907 a month in Social Security benefits. As such, following a December 2017 Board remand, the RO attempted to obtain the Veteran’s Social Security Administration (SSA) records in January 2018. Unfortunately, a response by the SSA indicates that his records were destroyed. However, a December 2020 SSA profile and benefit data record reflects his disability onset date began in February 2002 and his initial entitlement date was August 2002. In a June 2003 VA examination, the VA examiner stated that prior to February 2002, the Veteran had no history of a mental disorder. The Veteran reported his PTSD symptoms were precipitated by a motor vehicle accident involving two Vietnamese individuals. That motor vehicle accident also led to minor physical injuries which aggravated a previous back injury in November 1985. During the VA examination, the VA examiner noted the Veteran had intense feeling of inferiority and insecurity and lacks both self-confidence and self-esteem. He withdrew from everyday activities and exhibited emotional apathy. He was suspicious and distrustful of others and avoided deep emotional ties. It also appeared that he was seriously deficient in social skills and was most comfortable alone. He also lacked interest and involvement in his life situation and has difficulty starting things. The VA examiner noted that he overreacts to minor physical dysfunction and may present multiple somatic symptoms. Notably, the VA examiner stated that it was unclear to what extent his spotty work history is a result of his PTSD symptoms or other determining factors such as his marijuana use of 27 years and history of alcohol abuse. The VA examiner further stated that his testing revealed a great deal of psychopathology that goes beyond his PTSD symptoms. However, the VA examiner that his other psychopathology intermingled with his PTSD symptoms making it difficult to separate how each contributed to his social and occupational dysfunction. In a May 2004 VA examination, the examiner noted that when asked whether the Veteran would be able to work if not for his back injury, he replied that he could work. About 45 minutes later, the Veteran returned to the VA examiner’s office to correct his response stating that he could not work because he could not interact with the public and that he is socially isolative. In response to the RO’s request to assess the Veteran’s current loss of functionality without respect to his other mental diagnosis, the VA examiner stated it was not possible to assess his loss of functionality without reference to his personality disorder and drug abuse. The VA examiner stated that the Veteran’s severe personality disorder impairs his functionality but that it was not possible to separate or quantify his personality disorder and PTSD. An August 2004 VA mental health treatment record further noted his discussion of back problems dating back to a 1985 accident and that he was still following a claim with Workman’s Compensation. He reported he was unsure whether to have surgery or to be treated conservatively since he was managing the pain fairly well and with occasional use of a cane. In a January 2007 VA mental health note, a clinical social worker noted that his comorbid Axis II (personality disorder) pathology and chronic back pain make it difficult to know with certainty what is going on the Veteran. It was further noted that he presented with symptoms of multiple diagnosis and that his PTSD is the driving force behind his psychotic and depressive symptoms. The clinical social worker also stated that he will need long-term treatment to address his Axis I (psychotic disorder, PTSD, and depressive disorder) and Axis II (personality disorder). During that a February 2007 VA examination, he reported increased visual hallucinations consisting of Vietnamese people peering into his windows. He also complained of sleep disturbances getting less than four hours of sleep at night. He also stated that he was afraid to go out into crowds of people and stopped going to the grocery store since December. He further gets daily panic attacks when thinking about going to the grocery store or of other tasks he must do that day. His employment situation remained unchanged during this VA examination. Upon interviewing the Veteran, the VA examiner noted that his ability to function socially and occupationally has deteriorated since the last examination. The VA examiner further noted that his symptoms of depression and borderline personality disorder overlaps with his symptoms of PTSD and makes it difficult to differentiate the content to which the social and occupational impairment are solely affected by his PTSD. The Veteran was further assigned a GAF score of 50, indicating that the severity of his symptoms results in serious impairment in social and occupational functioning. His VA treatment records also reflects he was hospitalized in August 31, 2008 through September 3, 2008 for homicidal ideation after his sister was burglarized and assaulted. See March 2009 CAPRI. In a March 2009 VA mental health psychotherapy group session, a licensed independent social worker (LISW) noted the Veteran reported being stressed out, nervous, and anxious due to being asked to provide more information for a service connection appeal. The LISW noted that his psychiatric disabilities speak for themselves and in the LISW’s opinion, the Veteran was functionally impaired and not employable. In a June 2010 letter, the VA LISW stated that the Veteran needed ongoing, intensive, long term therapy for his PTSD which requires his entire concentration and focus in his group and individual therapy. The LISW stated that to engage in employment would cause a regression in his diagnosis of PTSD and psychotic disorders. In a July 2010 Board hearing, the Veteran stated that his PTSD symptoms have been so severe as to have impacted his employment. He described his chronic nightmares about Vietnam and his hallucinations about them. He described various occasions when he became angry and hyperventilating after conflicts with people. He further admitted to having violent thoughts against people but did not act them out. He often becomes easily agitated in public spaces such as grocery stores because of crowded areas. In efforts to develop the Veteran’s TDIU claim, a VA Form 21-8940-Veteran’s Application for Increased Compensation Based on Unemployability, was sent to the Veteran. In response, the Veteran submitted statement in support of claim on November 2011 stating his work experience were generally unskilled, gas station attendants, or heavy labor. He also stated that his work up until his last job was intermittent and that he no longer had the details of the employers. He further stated that since it was nearly 10 years ago and that he did not believe there would be any personnel records available. He further stated that his service-connected disability, at its present level of severity, would prevent him from working regardless of his other traumatic injuries, age, or other nonservice-connected factors. Another letter from his VA LISW in November 2011 further noted that his symptoms such as chronic hypervigilance, hyper startle response, impaired concentration, sleep, and agitation secondary to intrusive thoughts and flashbacks prevents him from being successful in employment. The Veteran was provided with another VA examination in November 2011. Similarly, the VA examiner noted it was not possible to differentiate between the Veteran’s psychiatric symptoms. The VA examiner stated his personality disorder includes emotional dysregulation and lability, impulsivity, a sense of entitlement, lack of empathy for others, grandiosity, and willingness to exploit others that leads to social and interpersonal impairments. When combined with his PTSD, it worsens his social functioning. The VA examiner further noted that his psychiatric symptoms causes occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform. Additionally, the VA examiner noted that his symptoms also caused occupational and social impairment with reduced reliability and productivity. The VA examiner further noted that the Veteran reported that he has been unemployed since 2001. He stated it was initially due to his physical inability related to his back problems but later added that his PTSD symptoms prevents him from working. He stated he was “retired” by social security due to his broken back. Upon providing a response to the question of whether the Veteran can secure and maintain substantially gainful employment, the VA examiner stated that given the exaggerated findings in the examination, it was not possible to answer the question without resorting to mere speculation. The VA examiner also stated that the answer would be complicated due to the inability to parse out symptoms of his psychiatric conditions. His VA treatment records also shows that he was hospitalized for his PTSD on April 16, 2015 to April 23, 2015 for suicidal ideation. See August 2015 Medical Treatment Record-Government Facility. However, the Veteran stated that it was a misunderstanding between him and his therapist. Id. Contrary to most of the previous medical treatment records, an August 2015 VA examiner stated that it was possible to differentiate the symptoms attributable to his psychiatric disorders. The VA examiner noted there was a strong component of the Veteran overreporting symptoms attributed to his trauma in the military. The VA examiner stated that many of his complaints appeared to be a longstanding overall negative and mildly paranoid view of the world. The VA examiner stated that his symptoms had little to do with his trauma and developed in intensity after service due to a motor vehicle accident. The VA examiner further noted his psychiatric symptoms did result in 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. However, the VA examiner noted that the majority of his inability to function adequately in social and vocational circumstances was likely due to factors other than symptoms related to the Veteran’s PTSD from service-related issues. The VA examiner also stated that while he reported having not worked since 2001, he seemed to indicate that he has not worked a steady job since his back injury in 1985. The August 2015 VA examiner further concluded that there did not appear to be any significant increase in functional problems directly related to his PTSD symptoms. It was noted that his mental health symptoms would likely cause mild discomfort when interacting with other people, and mildly reduced communication effectiveness. This level of fatigue, concentration problems, and inner turmoil would likely cause mild to moderate work inefficiency and lack of productivity, for example being distractible. The amount of fatigue, apathy, and motivation problems he conveyed would likely cause intermittent moderately reduced reliability, such as missing work because of symptoms. The amount of avoidance of social contact and confrontation would likely interfere moderately with his ability to interact effectively. His ability to maintain a logical thinking process appeared adequate and would not likely impact his social or vocational functioning. He had some moderate reduction in his ability to adapt to stressful circumstances such as workplace, classroom and other social environments. Finally, the VA examiner stated that his mental health issues would likely have a moderate impact on his ability to obtain and maintain full time competitive gainful employment. Upon referring this issue in November 2020 to the Director for Compensation Services, the Director for Compensation Services concluded that he was not entitled to TDIU on an extraschedular basis because the impairments contributing to his unemployability prior to May 16, 2016 were not solely due to his PTSD. See December 2020 VA Memorandum. The Board notes that it is not bound by an adverse determination by the Director regarding extraschedular entitlement to TDIU, which is in essence a decision by the agency of original jurisdiction reviewable de novo by the Board, and thus, no different than a RO’s decision in terms of its effect on the Board’s statutory jurisdiction and standard of review. Wages v. McDonald, 27 Vet. App. 233, 238-39 (2016). After a review of all pertinent evidence of record and resolving the benefit of the doubt in favor of the Veteran, the Board finds that the Veteran’s service-connected disabilities prevented his ability to secure substantial gainful employment prior to October 15, 2015, and an extraschedular TDIU is warranted for this period on appeal. The Board notes that the Director for Compensation Services denied entitlement to an extraschedular TDIU on the basis that impairments contributing to his unemployability prior to May 16, 2016 were not solely due to his PTSD. However, the VA treatment records and VA examinations have largely been consistent in finding that his symptoms of psychiatric disorders could not be separated due to overlapping symptoms. As the symptoms of the Veteran’s psychiatric disorders cannot be distinguished from each other, VA must attribute the effects to the now service-connected PTSD. See Howell v. Nicholson, 19 Vet. App. 535, 540 (2006); Mittleider v. West, 11 Vet. App. 181, 182 (1998) (VA must apply the benefit of the doubt doctrine and attribute the inseparable effects of a disability to the claimant’s service-connected disability). Although an August 2015 VA examination noted that his social and occupational limitations were likely due to his nonservice-connected psychiatric disabilities other than PTSD, the VA examiner later stated there did not appear to be any significant increase in functional problems related to his PTSD. The August 2015 VA examiner further noted that his mental health symptoms would likely cause mild to moderate limitations when interacting with others. His symptoms would also cause mild to moderate limitations in work efficiency, productivity, and ability to adapt to stressful circumstances such as workplace, classroom and other social environments. Ultimately, the August 2015 VA examiner stated that his mental health issues would likely have a moderate impact on his ability to obtain and maintain full-time competitive gainful employment. This supports a finding that his PTSD precluded him from obtaining or maintaining substantially gainful employment prior to October 16, 2015. Even considering the August 2015 VA examiner’s notation that he was initially unable to work due to his back injury in 1985, the evidence reflects that the Veteran did continue to work in various jobs up until 2002. The Board further finds that the economic component under Ray is further met as the evidence has continued to show the Veteran has not been employed since 2001 or 2002. Further, the noneconomic component under Ray has been met. The Veteran has limited education, skill, and training. The Veteran’s PTSD symptoms cause him to be socially withdrawn and emotionally labile. Moreover, his previous work history has consisted of working in manufacturing companies, as a cashier at several gas stations, and as a janitor. The Veteran’s symptoms reported throughout the period prior to October 15, 2015 consisted of chronic sleep impairment, audio and visual hallucinations, disturbances in mood and motivation, exaggerated response, hypervigilance, three to four hospitalization for homicidal/suicidal ideation, difficulty concentrating, irritability, difficulty establishing and maintaining relationships, and difficulty adapting to stressful circumstances including work. More notably, the LISW following the Veteran at the VA stated that the Veteran’s engagement in employment would cause a regression in his diagnosis of PTSD and psychotic disorders. In a subsequent letter, the LISW also stated that his symptoms noted as chronic hypervigilance, hyper startle response, impaired concentration, sleep, and agitation secondary to intrusive thoughts and flashbacks prevented him from being successful in employment. Considering the Veteran’s limited education, skills, training, and previous work history, the Board finds that the prior to October 15, 2015, the Veteran’s service-connected PTSD significantly reduced his ability to be reliable and productive in any employment setting. In sum, based on the medical and lay evidence outlined above, the Board finds that the Veteran has been unable to sustain substantially gainful employment for the portion of the appeal period prior to October 15, 2015. As such, an award of TDIU on an extraschedular basis prior to October 15, 2015 is warranted. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Xiong, 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.