Citation Nr: 21021053 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 16-30 656 DATE: April 9, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis effective March 31, 2012 is granted. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, his service-connected disabilities precluded him from obtaining or retaining substantially gainful employment beginning March 31, 2012, the day after he last worked full-time.  CONCLUSION OF LAW The criteria for a TDIU on an extraschedular basis have been met. 38 C.F.R. §§ 3.340, 3.341, 4.16(b) (2019).  REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1970 to March 1972. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a November 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded this claim for referral to the Director of Compensation Service for extraschedular consideration in November 2018. TDIU 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 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).  If a sufficient rating is present, then it must be at least as likely as not that the Veteran is unable to secure or follow a substantially gainful occupation as a result of that disease. See 38 C.F.R. § 4.16 (a). 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). 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. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose, 4 Vet. App. at 363. Where these percentage requirements are not met, entitlement to 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, and consideration is given to the Veteran’s background including his or her employment and educational history. 38 C.F.R. § 4.16 (b). The Board does not have the authority to assign an extraschedular total disability rating based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). However, it must be considered whether to refer a TDIU claim to the Director of Compensation Service for extraschedular consideration when the Veteran’s service-connected disabilities do not meet the schedular percentage requirement. 38 C.F.R. § 4.16(b). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. 1. Entitlement to a TDIU on an extraschedular basis. The Veteran is currently service connected for adjustment disorder with mixed anxiety and depressed mood, evaluated at 30 percent; bilateral hearing loss, evaluated at 10 percent; and tinnitus, evaluated at 10 percent; for a total combined rating of 40 percent. Accordingly, the Veteran does not meet the schedular threshold requirement for a TDIU. Nevertheless, as noted above this claim was previously remanded for referral to the Director of Compensation Service for extraschedular consideration. In October 2020 an advisory opinion was rendered, wherein the executive director of compensation service opined that entitlement to a TDIU on an extraschedular basis is not established. For the reasons explained below, the Board disagrees with this opinion and finds that entitlement to a TDIU on an extraschedular basis is warranted. The Veteran’s initial claim for a TDIU came in conjunction with his increased rating claim for his service-connected adjustment disorder in August 2012. At that time the Veteran provided a report from his private psychiatrist, Dr. E.H., showing the Veteran presented to a private hospital with a history of depressive mood and suicidal thoughts on August 13, 2012. The Veteran reported that over the previous month he had been feeling increasingly depressed. He also reported that he was sleepless, unable to concentrate, and unable to motivate himself. A mental status examination showed that at that time, the Veteran was fully oriented, his mood was depressed, and his affect was congruent. The Veteran denied suicidal or homicidal ideation at the time of examination but stated that he was having suicidal ideation a month prior. Dr. E. H. reported that during the Veteran’s stay at the hospital, he was cooperative, did not voice any suicidal or homicidal thoughts, and showed no signs of any acute distress or psychotic behavior. The report noted that the Veteran slept for seven and half hours a night. At the time of time of discharge on August 15, 2012, the Veteran was fully oriented, his mood was improved, and his affect consistent. VA received a private psychiatric evaluation in September 2012. The evaluation shows that in May 2012 the Veteran had concerns about his history of acute depression, anxiety, guilt, and avoidance behaviors. The evaluation indicated the Veteran had a good relationship with his wife and maintained regular contact with his four children and eleven grandchildren. The evaluation also stated that the Veteran’s functioning within the home setting was not impaired, although the Veteran felt that he was unable to work due to his age, depression/anxiety, and other physical ailments. The physician diagnosed adjustment disorder with mixed anxiety and depressed mood. The evaluation indicates that at the time of the evaluation, the Veteran was oriented, his mood and affect were appropriate, thought content was normal, and insight and judgment were good. The Veteran reported that he had suicidal ideation without intent or plan twice a week, impaired sleep, and panic attacks. In October 2012, the Veteran was afforded a VA examination. The examiner provided a diagnosis of adjustment disorder with mixed anxiety and depressed mood and depressive disorder NOS. The examiner determined the Veteran had 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 examiner noted symptoms of depressed mood, anxiety, chronic sleep impairment, and mild memory loss (such as forgetting names, direction, or recent events). The examiner also noted the Veteran was capable of managing his financial affairs. The Board notes the examiner did not consider the September 2012 report from Dr. E. H. in making the determination as it was not in the Veteran’s file at the time of the examination. In addition, the evidence of record contains a November 2012 letter from VA psychiatrist, Dr. T. M. noting the Veteran’s treatment for depression, anxiety, and chronic adjustment disorder. Dr. T. M. stated that the Veteran had been able to keep a job with duties that did not involve close contact with others until he became unable to tolerate work conditions less and less. Dr. M. noted that it was his opinion that the Veteran’s current work and home stresses were interacting with his mental illness and leading to a gradual reduction in the Veteran’s global functioning. In October 2013, the Veteran underwent an additional VA examination. The examiner provided a diagnosis of adjustment disorder mixed with anxiety and depressed mood. Regarding occupational and social impairment, the examiner determined that the Veteran had occupational and social impairment due to mild or transient symptoms with decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The examiner noted symptoms including depressed mood, anxiety, and chronic sleep impairment. About the Veteran’s depressed mood, the Veteran reported that he felt depressed two to three times a week, for a half day to an entire day. The examiner indicated that the severity of the Veteran’s depression was mild. With regard to the Veteran’s anxiety, the Veteran reported that he had anxiety twice a week, for three hours to an entire day. The examiner indicated that the severity of the Veteran’s anxiety was mild. With regard to the Veteran’s sleep impairment, the Veteran reported sleeping an average of three to four hours per night and napping for three hours during the day. The Veteran denied current suicidal or homicidal ideation. The examiner noted that there were no signs of mania or evidence of psychosis. He also determined that the Veteran was capable of managing his financial affairs. Social Security Administration (SSA) records show that the Veteran was awarded disability benefits due to affective mood disorder and hearing loss in November 2014. In general, the records indicate that the Veteran’s affective disorder and anxiety disorder were more than non-severe. He was found to have moderate restriction in activities of daily living (ADL), moderate difficulty in maintaining social functioning, and moderate difficulty maintaining concentration, persistence or pace. In a September 2014 letter it was determined that the Veteran’s disabilities make it unreasonable to expect that he could use the VA Vocational Rehabilitation & Employment (VRE) program to obtain and maintain competitive employment at that time. Specifically, the letter written to the Veteran stated “It was determined that you do not have any transferable skills that would enable you to work in a field that does not aggravate your service-connected disabilities. You are infeasible for employment services under Chapter 31 due to your severe limitations caused by your combined service-connected disabilities. You have significant disabilities that would be consistent with permanent unemployability. You are not feasible for Vocational Rehabilitation and Employment, nor is it believed that other employers would hire you with the numerous limitations to employment.” The evidence of record also contains an SSA form completed by Dr. M., which VA received in April 2015. Dr. M. reported the Veteran’s thought processes were logical, coherent, and goal directed, and the Veteran had chronic/recent suicidal thoughts, although there was no recent suicide intent or planning. Dr. M. noted that the Veteran was oriented and did not experience hallucinations. Regarding behavioral observations, Dr. M. noted that the Veteran was cooperative and pleasant. Concerning the Veteran’s diagnosis and prognosis, Dr. M. reported that the Veteran had chronic adjustment disorder with depression that is currently treated to a mild/moderate severity and will persist with exacerbation under stress. Dr. M. reported that the Veteran was competent to manage his finances. Dr. M. also reported that the Veteran maintained his marriage with difficulty and did not socialize due to discomfort. In addition, Dr. M. reported that in his opinion, the Veteran is not capable of sustaining work activity for eight hours a day, five days a week because “at some point, probably sooner than later, [the Veteran] will have incapacitating exacerbation of depression affecting his ability to arrive and persist in duties.” The Veteran underwent another VA examination in May 2016. The examiner provided a diagnosis of unspecified depressive disorder. The examiner determined that the Veteran’s mental disability caused 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. The examiner reported that the Veteran’s symptoms included depressed mood, anxiety, chronic sleep impairment, and difficulty in adapting to stressful circumstances, including work or a worklike setting. The examiner noted that the Veteran arrived on time, with casual dress and good hygiene. The examiner also stated that the Veteran was fully oriented and cooperative throughout the examination. The Veteran’s affect appeared dysphoric and congruent with reported mood. The Veteran’s thought processes appeared organized, and his speech was coherent. There was no evidence of psychosis. The Veteran denied suicidal or homicidal ideation, intent, or plan. The examiner stated that the Veteran was fully capable of managing his financial affairs. The examiner also stated that the Veteran’s service-connected mental disorder mildly impaired his ability to understand and follow instructions and to retain instructions or sustain attention in simple tasks and may contribute to moderate impairment in sustained concentration on complex tasks. In addition, the examiner determined that the Veteran’s mental disorder may contribute to moderate impairment in task persistence and pace, ability to respond appropriately to co-workers, supervisors, or the general public, and ability to respond appropriately to changes in a work setting. Additionally, the examiner noted that records show the Veteran could work successfully for decades before retiring due to age or duration of employment. However, the Board notes that this finding that the Veteran retired is incorrect. Instead, SSA treatment records note in November 2014 that the Veteran has documented mental conditions “that impose moderate to marked limitations on ADL functioning.” The Veteran was awarded disability benefits beginning September 3, 2014 due to his affective/mood disorder and hearing loss, rather than normal retirement benefits. Moreover, an October 2013 request for employment information was completed by the Veteran’s last employer and it was noted that the Veteran was no longer working due to “sickness (hearing problems, ringing inside head).” Taking into consideration the Veteran’s treatment records, VA examination findings, his awarded SSA disability benefits, the letter denying eligibility for the VRE program, his past employment information, and the contentions made by the Veteran, his representative, and his wife; the Board resolves reasonable doubt in favor of the Veteran and finds entitlement to a TDIU on an extraschedular basis, beginning March 31, 2012, the day after the Veteran’s last day of employment, is warranted. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Ruiz, Associate Attorney 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.