Citation Nr: 21021127 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 14-39 810 DATE: April 9, 2021 ORDER A total disability rating based on individual unemployability (TDIU), as of March 28, 2012, on an extraschedular basis is granted. FINDING OF FACT The evidence is in equipoise as to whether the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected posttraumatic stress disorder (PTSD) throughout the period on appeal. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, the criteria for a TDIU, as of March 28, 2012, on an extraschedular basis are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1964 to June 1966 in the U.S. Army. This matter comes before the Board of Veterans’ Appeals (Board) from a May 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. This case has been advanced on the docket pursuant to 38 C.F.R. § 20.900(c). In June 2017, the Board found that the issue of entitlement to a TDIU was raised by the record as part and parcel of his claim for an increased rating for his service-connected PTSD. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran contends that he is unemployable due to his service-connected PTSD. A TDIU may be assigned where the schedular rating is less than total and it is found that a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities that meet certain percentage requirements. 38 C.F.R. § 4.16(a). A schedular TDIU requires, as relevant, one service-connected disability rated at 60 percent or more. When the schedular TDIU requirements are not met, entitlement to a TDIU on an extraschedular basis may still be granted. 38 C.F.R. § 4.16(b) states “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.” Neither the Agency of Original Jurisdiction (AOJ) nor the Board is authorized to assign an extraschedular TDIU in the first instance under 38 C.F.R. § 4.16(b). Wages v. McDonald, 27 Vet. App. 233 (2015). In this regard, 38 C.F.R. § 4.16(b) states that “rating boards should submit to the Director, Compensation Service (Director), for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the” schedular TDIU requirements. In deciding the Veteran’s claim, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event; or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. In this case, the Veteran’s PTSD was assigned a 30 percent rating prior to March 28, 2012, and a 50 percent rating thereafter. As the Veteran has not met the schedular criteria for a TDIU, the Board remanded the issue of entitlement to a TDIU on an extraschedular basis in May 2018 to the Director for consideration. The Director denied the extraschedular claim in a May 2019 VA memorandum and the matter is now before the Board. After resolving all reasonable doubt in the Veteran’s favor, and based on the evidence of record, the Board finds that the Veteran’s PTSD prevented him from securing or following substantially gainful employment throughout the period on appeal. Regarding the Veteran’s education, the record shows that he has a bachelor’s degree. His occupational history includes working as an accountant. Thereafter, the Veteran bought and became Vice President of a publishing company. In 2001, he retired and sold his share of the publishing company due to a conflict with the President of the company. See VA Treatment Records received May 2012. Regarding functional impairment, the medical evidence of record shows that the Veteran’s PTSD symptoms include mild memory loss, such as forgetting names, directions, and recent events, depressed mood, disturbances of motivation and mood, anxiety, and chronic sleep impairment throughout the period on appeal. Additionally, the November 2017 VA examination shows that the Veteran had passive suicidal ideation. The Veteran has also reported that he has low motivation and energy, increased isolation, decreased engagement in activities of interest, and often does not take care of tasks that he feels he should. See VA Treatment Records received May 2012 and September 2014. Regarding occupational impairment, the November 2017 VA examiner found that the Veteran has difficulty attending to or is easily distracted from the task at hand; has significant difficulty functioning around other people, has difficulty functioning as a team member, and feels uncomfortable around others; is so depressed that he has difficulty sustaining energy and motivation to complete assignments at work; and is prone to irritability and panic attacks, which impacts his ability to interact with others, and interferes significantly with the ability to work. These findings are consistent with the medical evidence of record throughout the appeal period. See e.g. VA Treatment Records received May 2012 and September 2014. After review of the record, the Board finds that the evidence regarding the Veteran’s ability to secure or follow a substantially gainful occupation throughout the period on appeal is in equipoise. Specifically, the evidence of record supports the finding that the Veteran would have difficulty maintaining employment due to his PTSD. As such, the benefit of the doubt regarding the Veteran’s employability should be resolved in his favor. Therefore, based on the evidence of record, the Board finds that a TDIU is warranted as of March 28, 2012, the date that the Veteran’s increased rating claim for PTSD was granted. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Kernen, 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.