Citation Nr: 21022414 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 14-23 670 DATE: April 15, 2021 ORDER A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) on an extraschedular basis from April 19, 2010, to May 3, 2020, is granted. FINDING OF FACT From April 19, 2010, to May 3, 2020, the Veteran did not meet the schedular requirements for TDIU, but it is reasonably shown that the Veteran’s service-connected disabilities precluded her from securing or following substantially gainful employment consistent with her education and occupational experience. CONCLUSION OF LAW From April 19, 2010, to May 3, 2020, the criteria for entitlement to TDIU on an extraschedular basis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1981 to August 1985, with subsequent service in the North Carolina Army National Guard. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2012 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. This matter was previously before the Board in August 2015, October 2017, August 2018, and October 2020. In a January 2019 rating decision, the RO granted service connection for an acquired psychiatric disorder to include posttraumatic stress disorder, anxiety, and depression at a 50 percent rating effective April 19, 2010. In a September 2019 rating decision, the RO granted service connection a left knee and back disability and assigned 10 percent ratings effective June 8, 2010, and September 14, 2010, respectively. In October 2020, the Board denied entitlement to a TDIU on a schedular basis for the entire period on appeal and remanded the issue of entitlement to a TDIU on an extraschedular basis. In a November 2020 rating decision, the RO increased the rating for an acquired psychiatric disorder from 50 to 100 percent effective May 4, 2020. The Board notes the Veteran filed an informal service connection claim for an acquired psychiatric disorder on April 19, 2010, and a formal TDIU claim was filed on September 23, 2010. Inasmuch as the November 2020 rating decision awarded a 100 percent rating for the Veteran’s acquired psychiatric disorder beginning May 4, 2020, the claim for TDIU has been recharacterized as entitlement to TDIU from April 19, 2010, to May 3, 2020. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (a request for TDIU (whether expressly raised or implied by the record) is not a separate claim for benefits, but rather an attempt to obtain an appropriate rating, either as part of the initial adjudication of a claim or as part of a claim for an increased rating). The Veteran testified before a Veterans Law Judge in a March 2015 hearing regarding the issue on appeal. In June 2020, the Veteran was notified that the Veterans Law Judge who conducted her Board hearing in March 2015 was no longer available to adjudicate the case. In July 2020, the Veteran declined another Board hearing. The Veteran was previously represented by an agent, but she was notified in January 2019 that the agent is no longer accredited to represent her before VA, and she did not appoint another accredited representative. Although that agent continued to submit arguments, there is no official representative for the appeal. Entitlement to TDIU on an extraschedular basis from April 19, 2010, to May 3, 2020. A total disability rating 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 the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to their age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of their service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system are considered as one disability. Id. Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to TDIU is based on an individual’s particular circumstance.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (quoting Thun v. Peake, 22 Vet. App. 111, 116 (2008)); see also Todd, 27 Vet. App. at 85-86. Therefore, in adjudicating a TDIU claim, VA must take into account the individual veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering veteran’s 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering veteran’s master’s degree in education and his part-time work as a tutor). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to the following: • The veteran’s history, education, skill, and training; • Whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and • Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle work-place stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The ultimate question of whether a Veteran is capable of substantial gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). From April 19, 2010, to May 3, 2020, the Veteran’s service-connected disabilities included: acquired psychiatric disorder, to include PTSD, anxiety, and depression (50 percent as of April 19, 2010); left knee disability (10 percent as of June 8, 2010); back disability (10 percent as of September 14, 2010); allergic rhinitis (noncompensable as of May 5, 2010); and left knee scar (noncompensable as of December 4, 2007, 10 percent as of October 30, 2009, and noncompensable as of September 1, 2012). Considering the service-connected disabilities and assigned ratings, the Veteran had a combined service-connected disability rating of 0 percent effective December 4, 2007, 10 percent effective October 30, 2009, and 60 percent effective April 19, 2010. These conditions did not result from a common etiology, affect the same body system, or otherwise meet the criteria to be considered as one disability for TDIU purposes. Although the Veteran had one disability rated at least 40 percent disabling, her disabilities did not combine to 70 or more percent. Accordingly, the schedular percentage threshold for a TDIU are not met. See 38C.F.R. §4.16(a). It is also 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. Therefore, rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. The rating board will include a full statement as to the veteran’s service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). The Board is required to obtain the Director’s decision before it may award extraschedular TDIU. Wages v. McDonald, 27 Vet. App. 233, 236 (2015). The Board has reviewed the evidence of record and finds that TDIU on an extraschedular basis from April 19, 2010, to May 3, 2020, is warranted. The Veteran contends that she has been unemployable since October or November 2006 primarily due to her acquired psychiatric disorder, left knee, and back disabilities. She stated that she was last employed in a clerical position. During the period on appeal, she reported difficulty standing, sitting, walking, or driving for even short periods due her various conditions, some of which are not service-connected, and that she lost time from work due to medical treatment and pain and was often unable to perform duties. Her psychiatric symptoms included auditory hallucinations, panic attacks, chronic sleep impairment, uncontrollable crying, and nightmares. Further, she reported that medications for stress, pain, depression make her sick and that she is always sleepy and in pain. Her medications included Clonazepam, Naproxen, Amitriptyline, Tramadol, and Sertraline. See VA Form 21-8940 dated September 2010, June 2019, and December 2020; VA Form 21-4138 dated January 2010, May 2010, and September 2010; July 2010, Correspondence; March 2010, VA treatment record. In January 2021, the Director of Compensation Service determined that entitlement to TDIU on an extraschedular basis was not recommended during the period of appeal. The record demonstrates that the Veteran is a high school graduate. After discharge from service, she worked as an office secretary for approximately 13 years until the company closed, served in the National Guard for nine years, and graduated from community college with a degree in office administration in May 2009. See October 2009, Private treatment record; August 2009, VA treatment record. In August 2009, the Veteran reported having difficulty finding employment that allowed her to alternate between standing and sitting as often as she needed due to left knee pain. At that time, the Veteran was receiving intermittent injections and was prescribed a combination of Naproxen, Tramadol, and physical therapy to manage left knee pain. The record indicates the Veteran’s last full-time employment was in 2006. See September 2010, VA Form 21-8940. In June 2012, the Veteran was granted disability benefits from the Social Security Administration (SSA) effective May 7, 2010, her amended alleged onset date. The SSA disability award was based, in part, on her service-connected left knee and psychiatric disabilities, although the SSA uses a different standard for determining impairment and employability. SSA records indicated the Veteran last worked in October 2009 in a work-study program and earned $5.00 per hour; she worked a maximum of five hours per week. The Veteran was observed using a cane to ambulate and for support while standing. The Veteran reported that she could not sit or stand for over 30 minutes, climb stairs because it caused pain and her left knee would give way, walk more than a quarter mile, concentrate or following instructions due to chronic pain, or handle stress well; she stated she had frequent crying spells, was easily angered, and threw objects if there was a change in routine. See June 2010, SSA records. Between April 19, 2010, and May 3, 2020, the medical evidence of record suggests the Veteran suffered severe psychiatric symptoms, chronic left knee and back pain. The Veteran’s psychiatric symptoms included auditory and visual hallucinations of her in-service attacker; suicidal ideations without a plan; poor memory; pronounced anxiety; daily panic attacks; nightmares two to three times per week; extreme hypervigilance; depression; poor attention and concentration; intermittent inability to perform activities of daily living (ADLs) due to severe depression or lack of motivation to include showering, brushing teeth, and dressing; isolation; dysphoric mood; crying spells; and refusal to go outside at night. See VA treatment records dated October 2009, May 2010, March 2011, August 2015, October 2016, and November 2017; Private treatment records dated April 2010, December 2012, and February 2015. In May 2018, the Veteran’s treating psychiatrist, Dr. Mayo, indicated the Veteran was in constant fear of another attack, could not sleep, was extremely impaired during the day because she was always on edge and hypervigilant, avoided people for fear and lack of trust, and was severely socially impaired. Dr. Mayo noted that although the Veteran had been receiving therapy, no improvement was expected, and she was unable to work as a result of her medications and psychiatric disability. See May 2018, Private treatment record. The Veteran’s left knee symptoms during the period on appeal included giving way when walking; stiffness, swelling, and discomfort with prolonged siting, standing, or riding; lack of endurance; weakness, numbness, and extreme pain that causes falls and loss of balance; decreased ability to stand, walk, or drive; sleep impairment due to chronic pain; locking; fatigability; dislocation; difficulty navigating stairs due to pain; knee pain that limits her ability to perform ADLs; pain on palpation so severe that she could only tolerate a gentle touch; and the need to avoid pressure on the knee. See VA examinations dated March 2008, October 2008, January 2010, and June 2017; VA treatment records dated January 2009, August 2009, and October 2009. In 2009, the Veteran’s treating physician wrote a letter excusing the Veteran from jury duty because knee arthralgia made it difficult for her to sit or stand in one place for more than 30 minutes. See August 2009, VA treatment record. During the period on appeal, the Veteran’s back disability limited her ability to walk more than 50 to 100 feet without fatigue; caused falls, spasms, numbness, paresthesia, and stiffness; decreased range of motion; and pain was exacerbated by physical activity, stress, sitting, or lying. See VA examination dated January 2011 and April 2019. In light of the above, the Board finds that from April 19, 2010, to May 3, 2020, the Veteran’s service-connected disabilities caused functional impairment, and precluded her from securing or following substantially gainful employment in accordance with education and occupational experience. The medical and lay evidence reflect that the Veteran’s service-connected disabilities impact her ability to work, precluded all substantially gainful employment for which she would be qualified based on her educational and occupational history. Indeed, the evidence of record indicated that during the period on appeal, the Veteran did not handle stress well, could not sleep during the night, suffered daily debilitating panic attacks, had poor concentration and memory due to pain, could not sit or stand for more than 30 minutes, suffered angry outbursts, would periodically not be able to perform ADLs due to severe depression, and her combination of medications caused daytime fatigue. Accordingly, the Board finds TDIU on an extraschedular basis is warranted from April 19, 2010, to May 3, 2020. Wages; 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.340, 4.16(b). The Board finds than an effective date prior to April 19, 2010, for the grant of TDIU on an extraschedular basis is not warranted. The Board acknowledges that the Veteran has not worked fulltime since 2006. However, in order to be entitled to an earlier effective date for TDIU, an increase in the veteran’s service-connected disability must have occurred during the one year period prior to the date of the veteran’s claim to receive the benefit of an earlier effective date. See Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010) (discussing 38 U.S.C. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2)). Here, prior to April 19, 2010, service connection was in effect only for a left knee scar. The evidence of record does not indicate the left knee scar increased in severity during the year prior to April 19, 2010, such that the increase precluded all substantially gainful employment. Indeed, the Veteran stated that unbearable pain from her left knee caused by extended sitting and standing precluded substantial gainful employment. See September 2010, VA Form 21-8940. Accordingly, the Board finds that an effective date for TDIU prior to April 19, 2010, is not warranted. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Straughn, 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.