Citation Nr: 21020926 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 14-41 923 DATE: April 8, 2021 ORDER Prior to prior to August 23, 2018, a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDING OF FACT Prior to August 23, 2018, the factors warranting a TDIU on an extraschedular basis were not present. CONCLUSION OF LAW The criteria for a TDIU prior to August 23, 2018 have not been met. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 4.16 (b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1965 to October 1967, to include service in the Republic of Vietnam. In February 2018, the Veteran was afforded a hearing before the undersigned Veterans Law Judge. In December 2020, the Board remanded this claim for additional development. In November 2020, the Veteran submitted a prospective waiver of evidence for all evidence that has not been considered by the Agency of Original Jurisdiction. See 38 C.F.R. § 20.1304 (c). 1. TDIU prior to August 23, 2018. The Veteran asserts that he is entitled to a TDIU prior to August 23, 2018, primarily due to his service-connected acquired psychiatric disorder. He argues that a TDIU is warranted beginning in May 2015, as he quit working on that date. During a hearing, held in February 2018, the Veteran testified that he was “kind of retired” from work on his family farm. On August 23, 2018, the Veteran filed a claim for a TDIU. See Veteran’s claim (VA Form 21-8940), received on August 23, 2018. On September 25, 2018, the RO increased the Veteran’s rating for PTSD from 50 percent to 100 percent, effective August 23, 2018, and stated that the TDIU issue was moot. In September 2019, the Veteran filed a notice of disagreement as to the TDIU issue. The Veteran argued that the TDIU issue was not moot for the period from May 2015 (the date he last worked) to August 2018. In November 2019, the RO issued a statement of the case. In November 2019, a timely appeal (VA Form 9) was received. VA law and regulation provide that unless otherwise provided, the effective date of an award of increased evaluation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application therefor. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (o)(1). The effective date of an award of increased compensation may, however, be established at the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if the application for an increased evaluation is received within one year from that date. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2). A TDIU claim is treated as a claim for increased compensation, and the effective date rules for increased compensation apply to the TDIU claim. See Hurd v. West, 13 Vet. App. 449 (2000). Given the relevant administrative history, the Veteran may be assigned an effective date for TDIU as early as August 23, 2017, one year prior to the receipt of his TDIU claim. An effective date for a TDIU prior to August 23, 2017 is not warranted on any basis as a matter of law, as the Veteran did not have a TDIU claim or an underlying increased rating claim before the RO or on appeal prior to receipt of his TDIU claim in August 2018. See 38 C.F.R. § 3.400 (o)(2); Rice v. Shinseki, 22 Vet. App. 447 (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. 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. If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). Prior to August 23, 2018, the Veteran was service-connected for posttraumatic stress disorder (PTSD), evaluated as 50 percent disabling from November 28, 2007; tinnitus evaluated as 10 percent disabling from November 28, 2007; eyebrow scar, evaluated as noncompensable from December 29, 1997; bilateral hearing loss, evaluated as noncompensable from November 28, 2007; and dermatitis, evaluated as noncompensable from November 7, 2012. The Veteran’s combined overall evaluation was 60 percent from November 28, 2007 to August 22, 2018. See e.g., January 2021 rating decision. Given the foregoing, the Veteran did not meet the percentage requirements of 38 C.F.R. § 4.16 (a) for TDIU prior to August 23, 2018, and the claim for a TDIU prior to August 23, 2018 must be considered under the criteria of 38 C.F.R. § 4.16 (b). An extraschedular total rating based on individual unemployability may be assigned in the case of a veteran who fails to meet the percentage requirements but who is unemployable by reason of service-connected disability. 38 C.F.R. § 4.16 (b). In adjudicating claims for TDIU, marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16 (a). Marginal employment generally shall be deemed to exist when a veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Id. 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. Therefore, rating boards should submit to the Director of the Compensation and Pension Service for consideration all cases of Veterans who are unemployable by reason of service-connected disabilities, but who do not meet the percentage standards of 38 C.F.R. § 4.16 (a). 38 C.F.R. § 4.16(b). Ordinarily, VA’s Schedule for Rating Disabilities will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. Fisher v. Principi, 4 Vet. App. 57 (1993). For VA purposes, the term unemployability is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91 (1991), 57 Fed. Reg. 2317 (1992). Factors such as employment history, as well as educational and vocational attainments, are for consideration. Id. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough to mandate the assignment of a TDIU. 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 can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The effect of a service-connected disability appears to be measured differently for purposes of extra-schedular consideration under 38 C.F.R. § 3.321 (b)(1) than for purposes of a TDIU claim under 38 C.F.R. § 4.16. While 38 C.F.R. § 3.321 (b)(1) requires marked interference with employment, 38 C.F.R. § 4.16 requires evidence of unemployability. Kellar v. Brown, 6 Vet. App. 157 (1994). Although the Board is precluded from initially assigning an extraschedular rating, the Board may review the adjudication of an extraschedular rating once the Director of the Compensation and Pension Service determines that an extraschedular rating is not warranted. Anderson v. Shinseki, 22 Vet. App. 423 (2009). While the Board considers the medical evidence of record, the ultimate matter of whether TDIU should be awarded is not a medical issue; it is a legal determination for the adjudicator to make. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The Veteran’s application for increased compensation based on unemployability (VA Form 21-8940), received in August 2018, shows that the Veteran indicated that he was prevented from securing or following any substantially gainful occupation due to PTSD, hearing loss, sleep apnea, GERD, skin infection, hiatal hernia, and an esophageal disorder. He indicated that he last worked full time as a “lead shipper” in May 2015. His last job was as a driver, for 44 hours a week between 1992 and 2015 (for one employer). He indicated that he did not leave his job because of his disability. A request for employment information (VA Form 21-4192), received from the Veteran’s employer in August 2018, indicates the following: No concessions had been made to the Veteran by reason of age or disability. He was terminated from full time work as a driver due to “normal retirement” in September 2008. He quit part time work that varied from 2 to 30 hours a week as a driver in May 2015. The Veteran has submitted documents from the Social Security Administration (SSA) that include a summary of earnings for the years between 1962 and 1975, which indicate that he received between about $14,000 and $16,000 in benefits between 2009 and 2017. The relevant medical evidence includes VA progress notes. A June 2017 report shows that the Veteran reported that he was actively working in his garden and that he had just finished bailing hay. He is a retired truck driver. He also once ran a shipping department at a small manufacturing company. He had also been a banker. He drives veterans to VA about twice a month. He was not taking any medications for control of psychiatric symptoms. VA progress notes, dated between August 2017 and February 2018, primarily show treatment for symptoms other than psychiatric symptoms, to include treatment for respiratory and gastrointestinal symptoms. VA progress notes, dated beginning in March 2018, show the following: The Veteran recently spent five weeks in Florida, where he did lots of walking. He denied a history of mental health treatment. He underwent orientation and he received his first group treatment for psychiatric symptoms. His diagnosis was PTSD. He reported that his symptoms included anxiety, being easily startled, having recurrent thoughts of combat, and avoiding reminders of his traumatic events. with regard to limitations, it was stated “none noted.” He declined a trial of Prazosin. A March 2018 VA psychiatric evaluation showed that he complained of symptoms that include intrusive thoughts, trouble sleeping and concentrating, and avoiding thinking about or talking about the events. The evaluation noted that he did not have a major depressive episode, suicidality, manic/hypomanic symptoms, a panic disorder, a social phobia, an obsessive-compulsive disorder, alcohol abuse or dependence, any other substance abuse or dependence, psychotic symptoms, a generalized anxiety disorder, or an antisocial personality disorder. The Veteran was noted to describe mild depressive symptoms that appear to overlap significantly with PTSD and that are likely better explained by a provisional PTSD diagnosis. Beginning in March 2018, VA progress notes shows that the Veteran was noted to have a logical and goal-oriented thought process, with one finding of “occasionally tangential.” He denied hallucinations, delusions, and homicidal or suicidal ideation. Insight was fair. Judgement was good. He was alert and oriented time three. Speech had a normal rate, tone, and prosody. He has a stable relationship with his a significant other. He is insightful and aware of his illness. The Veteran reported having a supportive relationship with his wife and children and a small network of friends. He has chronic symptoms that have not gone into remission, but he does not have any significant limitations. Cognitive functioning was within normal limits. An Advisory Opinion from the Executive Director, VA Compensation and Pension Service (C&P), dated in January 2021, states the following: The Veteran worked full time until 2008, when he retired, and then he worked part-time until 2015, when he quit. The Veteran did not file for disability through the Social Security Administration. The medical evidence shows that the Veteran’s mental condition resulted in difficulty sleeping, irritability with outbursts of anger, hypervigilance, and exaggerated startle response. Although it is conceded that the Veteran’s service-connected conditions cause and caused functional limitations, the preponderance of the evidence does not show that the Veteran was unable to obtain or maintain gainful employment due to his service-connected conditions between 2015 and 2018. It is the established policy of the Department of Veterans Affairs 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. Overall, the evidence fails to support the contention that any of the service-connected disabilities or a combination of the effects of those disabilities prevents employment. Entitlement to extra-schedular TDIU benefits is not established. Although the C&P Executive Director’s Advisory Opinion of the Veteran’s employability is found to be probative, overall, the Board has afforded this Advisory Opinion no more than moderate probative weight, as it does not discuss the medical evidence in detail. The Board has afforded the medical and other evidence of record relatively more probative value than the Administrative Review. Geib. The Veteran retired from being full-time truck driver in 2008. He has useful skills from his previous work experience in banking, shipping, and truck driving. The Veteran’s former employer has indicated that it did not make any concessions for him by reason of age or disability, and that he was terminated from full time work as a driver due to “normal retirement.” He then worked up to 30 hours a week on a part-time basis until 2015. There is no objective evidence to show that the Veteran’s retirement, or discontinuance of work in 2015, was related to psychiatric symptoms. The Veteran has indicated that he did not leave his job because of disability. Thereafter, the Veteran has reported that he actively works on his farm, to include performing such tasks as bailing hay. He also reported that he drives veterans to VA about twice a month. The medical evidence shows that the Veteran received treatment for his PTSD symptoms during the time period in issue. He is not shown to have been taking any medications for control of psychiatric symptoms. There is no history of hospitalization related to his service-connected PTSD or any other service-connected disability. 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 can find employment. Van Hoose. Other than Dr. E.T.’s reports, discussed infra, there is no competent evidence to show that he had any significant employment difficulties due to his PTSD or any other service-connected disability. The Board therefore finds that the Veteran is not shown to have marked interference with employment or frequent periods of hospitalization due to service-connected disability, nor are other factors warranting a TDIU on an extraschedular basis shown in the record. The Board finds that the evidence of record is insufficient to show that the Veteran is unable to secure or follow a substantially gainful occupation because of service-connected disability prior to August 23, 2018. Given the foregoing, the Board finds that prior to August 23, 2018, the Veteran has not met the requirements for a TDIU claim on an extra-schedular basis. The Board has considered the August 2018 opinion of Dr. E.T. and her associated VA PTSD disability benefits questionnaire (DBQ). Dr. E.T. states that the Veteran is not capable of sustaining substantial, gainful work activity, and that he is unemployable. The diagnosis was PTSD, chronic, delayed, and severe. Dr. E.T. indicated that the Veteran’s symptoms are productive of total occupational and social impairment. This evidence has been afforded reduced probative value. The Board first notes that although the 2007 report, Dr. E.T. concluded that the Veteran was unemployable, the evidence shows that the Veteran continued to work on a full or part-time basis for another eight years, until 2015. Although the August 2018 opinion indicates that it was based on a new examination, the opinion appears to largely be a reissuance of Dr. E.T.’s December 2007 opinion, with a few added comments and edits. In fact, some parts are repeated verbatim. In addition, Dr. E.T.’s August 2018 PTSD DBQ contains a number of findings that do not appear to have any predicate in the record, and/or that are inconsistent with the overwhelming majority of the other medical evidence of record. (e.g., findings of suicidal ideation, near-continuous panic or depression, difficulty in establishing and maintaining effective work and social relationships, and impaired impulse control). Compare VA Progress notes. This opinion is therefore afforded reduced probative value, and it is insufficient to warrant a grant of the claim. Neives-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The issue on appeal is based on the contention that a TDIU is warranted on an extraschedular basis prior to August 23, 2018. The Veteran’s medical records and the other relevant evidence of record has been discussed. Although lay persons are competent to report the presence of symptoms capable of lay observation, the Veteran is not competent to identify a specific level of disability according to the appropriate regulation or diagnostic code. The Board finds that the medical evidence outweighs the Veteran’s contentions to the effect that he met the criteria for a TDIU on an extraschedular basis prior to August 23, 2018. Madden v. Gober, 125 F. 3d 1477, 1481 (Fed. Cir. 1997). (Continued on the next page)   In reaching this decision, the Board considered the benefit- of-the-doubt rule. However, as the preponderance of the evidence is against the appellant’s claim, such rule is not for application. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T.S.E., 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.