Citation Nr: 21022659 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 05-21 658 DATE: April 16, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU), including on an extraschedular basis, prior to May 11, 2002, is denied. Entitlement to a TDIU on an extraschedular basis from May 11, 2002, to August 6, 2003 and from January 30, 2006, is granted. FINDINGS OF FACT 1. Prior to May 11, 2002, the Veteran was not precluded from obtaining and maintaining gainful employment due service-connected disabilities. 2. From May 11, 2002, to August 6, 2003, and from January 30, 2006, the Veteran was precluded from obtaining and maintaining gainful employment due service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to a TDIU prior to May 11, 2002, including on an extraschedular basis, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. 2. The criteria for entitlement to a TDIU from May 11, 2002, to August 6, 2003, and from January 30, 2006 on an extraschedular basis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1966 to April 1970. This matter initially came before the Board of Veterans’ Appeals (Board) on appeal from an August 2001 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In an April 2010 decision, the Board, in pertinent part, denied entitlement to a TDIU prior to August 6, 2003, and after January 30, 2006. The Veteran appealed the Board’s 2010 decision to the United States Court of Appeals for Veterans Claims (Court). In a February 2012 memorandum decision, the Court remanded the claim. Pursuant to the 2012 memorandum decision, the Board remanded the claim in September 2015 for additional development. The Board denied entitlement to a TDIU prior to August 6, 2003, and after January 30, 2006, in a November 2019 decision. The Veteran again appealed to the Court. In a November 2020 order, the Court granted a Joint Motion for Remand filed by the parties vacating the Board’s November 2019 decision and remanding to the Board for readjudication. 1. Entitlement to a total disability rating based upon individual unemployability (TDIU) on an extraschedular basis for the periods prior to August 6, 2003, and from January 30, 2006 The Veteran contends that he is unemployable as a result of his service-connected disabilities, and has indicated that he is unemployability as a result of his service-connected posttraumatic stress disorder (PTSD). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of his service- connected disabilities, from obtaining and maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Total disability ratings for compensation based on individual unemployability 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. §§ 3.340, 3.341, 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. Id. 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). 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 v. Brown, 4 Vet. App. 361, 363 (1993). In order for a veteran to prevail in a claim for TDIU, the record must reflect circumstances, apart from non-service-connected conditions, that place him or her in a different position than other veterans who meet the basic schedular criteria. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question is whether the veteran, in light of his or her service-connected disorders, is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. See Van Hoose, 4 Vet. App. at 361. In Geib v. Shinseki, 733 F.3d 1350 (2013), the Federal Circuit held that VA’s duty to assist did not require obtaining a single medical opinion regarding the combined impact of all service-connected disabilities. “Indeed, applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner.” Id. at 1354. At the outset, the Board notes that the Veteran met the schedular criteria for a TDIU from August 6, 2003, to January 30, 2006, and a TDIU has been awarded for this period. Prior to August 6, 2003, the Veteran was service-connected for PTSD (rated as 30 percent disabling from June 20, 2000 and as 50 percent disabling from May 11, 2002), right ring finger fracture (rated as noncompensable from September 7, 1995), and hemorrhoids (rated as noncompensable form September 7, 1995). As of January 31, 2006, the Veteran is service connected for PTSD (rated as 50 percent disabling from January 31, 2006), right ring finger fracture (rated as noncompensable), and hemorrhoids (rated as noncompensable). The Veteran has a combined evaluation of 30 percent from June 20, 2000, to May 10, 2002; 50 percent from May 11, 2002, to August 6, 2003; and 50 percent from January 31, 2006. In cases where the schedular criteria are not met, an extraschedular rating is for consideration when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. §§ 3.321, 4.16(b). The Board does not have the authority to assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Rating boards will refer to the Director of the Compensation Service for extraschedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16(a). Although the Veteran’s service-connected disabilities did not meet the threshold percentage requirements for consideration of a TDIU under C.F.R. § 4.16(a) prior August 6, 2003 or after January 30, 2006, VA’s policy is to grant a TDIU in all cases where service-connected disabilities preclude gainful employment, regardless of the schedular ratings. 38 C.F.R. § 4.16(b). However, the Board has no authority to award TDIU under § 4.16(b) in the first instance. Floyd v. Brown, 9 Vet. App. 88, 94 (1996). Rather, the rating board must submit to the Director of Compensation Service for extraschedular 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 § 4.16(a). Bowling v. Principi,15 Vet. App. 1, 10(2001). If the Director declines to award an extraschedular TDIU, the Board has jurisdiction to grant or deny the appeal, or remand for additional development and the Director’s decision is the same as the RO’s as far as the Board’s jurisdiction and standard of review. Wages v. McDonald, 27 Vet. App. 233, 238 (2015). In September 2015, the Board remanded the claim for referral to the Director, Compensation Service for extraschedular consideration. In April 2016, the Director of Compensation Service conducted an administrative review of the record and addressed whether a TDIU was warranted on an extraschedular basis prior to August 6, 2003 or after January 30, 2006. The Director declined to assign an extraschedular TDIU prior to August 6, 2003 or after January 30, 2006, after reviewing the pertinent evidence of record. The Veteran has primarily asserted that TDIU is warranted due to his PTSD. He asserts that the severity of his PTSD does not allow him to maintain gainful employment. He reported that he has been unable to secure employment since May 2002, when he was laid off of work in his previous position as a surveyor. Regarding the Veteran’s work history and experience, records reflect that the Veteran last worked as a land surveyor in May 2002. He worked for an engineering company for 23 months before being laid off. His educational background was also in surveying. In August 2003, the Veteran was afforded a VA examination. The Veteran reported working as a surveyor for about 28 years. He reported that during this period, he experienced periods of sleepiness, poor impulse control, passive suicidal ideation, and euphoric mood. The examiner diagnosed bipolar mood disorder and PTSD. He opined that the Veteran was not employable due to the severity of his mood disorder symptoms. Specifically, he indicated the Veteran would be unable to carry on routine dialogue between a supervisor and employee, and would be unable to understand and follow instructions on a regular basis. In January 2006, the Veteran was afforded a VA examination. The Veteran reported that he had difficulty working due to his nerves. The Veteran also indicated that he was unable to work due to physical reasons. Noted symptoms included anger, irritability, avoidance behaviors, markedly diminished interest or participation in significant activities, feelings of detachment from others, panic attacks, difficulty concentrating, hypervigilance, and a restricted range of affect. The examiner noted that the Veteran appeared to have some impulse issues and has carried a diagnosis of intermittent explosive disorder. The examiner opined that the Veteran was most likely not employable due to bipolar disorder and PTSD. She explained that the Veteran would have difficulty handling minor day to day frustrations, and had a tendency to blow things out of proportion. This was especially true if the Veteran was experiencing other stressors at the time, such as disagreements or attempts at concentrating on tasks. The Board remanded the appeal in October 2012 for evaluations as to determine the effects of his service-connected disabilities on his ability to maintain employment consistent with his education and occupational experience. In May 2014, the Veteran was afforded a VA mental health examination. The Veteran reported symptoms of depressed mood, anxiety, avoidance, exaggerated startle response, hypervigilance, irritable behavior, anger outbursts, chronic sleep impairment, impaired judgment, mild memory loss, feelings of estrangement or detachment from others, persistent and exaggerated negative beliefs or expectations about himself, difficulty in adapting to stressful circumstances, and suicidal ideation. The examiner further explained that PTSD symptoms would not increase the possibility of someone being accidently injured in a work place environment that had moving equipment or machinery, as evidenced by the Veteran’s report he was able to use power tools for woodworking without problems prior to his strokes in 2011. The examiner also indicated that PTSD symptoms would not make it more likely that the Veteran could become involved in an accident or get lost in a work environment that required frequent driving, as evidenced by him not having any problems in this area prior to his strokes in 2011. The PTSD symptoms of impaired concentration might cause only minor problems in decreased productivity in any work environment, as evidenced by his ability to maintain employment as a survey crew member for 27 years. PTSD symptoms of impaired concentration would make it only mildly difficult for the Veteran to function adequately in an environment that required a lot of mental processing (such as a fast paced, complex, or frequently changing work environment), as evidenced by his reports of being able to go to numerous different job sites as a routine part of his work as a survey crew member. The examiner further explained that PTSD symptoms would not likely cause excessive absenteeism, tardiness, and the need to leave work early as evidenced by his report of good performance as a survey crew member. The Veteran was afforded a VA examination for his right ring finger fracture and hemorrhoids in May 2014. He reported that he did not have any problems with any of his fingers, and reported no recent problems with his hemorrhoids. Physical examination revealed normal right-hand grip strength, no tenderness or pain to palpation, no limitation in range of motion, and no functional loss or any other symptoms related to his right ring finger fracture. The Veteran declined a physical examination for his hemorrhoids, and there were otherwise no findings, complications, conditions, signs or symptoms related to his hemorrhoids. VA treatment records show a history of psychiatric and mental health treatment. A report from June 2000 indicates that the Veteran’s PTSD issues had likely contributed to occupational instability. Psychiatry notes from January 2001 indicate a very low irritability threshold, and a history of alcohol use that finally went into remission 18 months prior with the help of the Veteran’s church. In December 2002, the Veteran presented for a PCT psychological evaluation. He appeared significantly anxious, tense, and angry. He reported sleep disturbances, recurrent nightmares, auditory hallucinations, passive suicidal ideation, and difficulty working due to anger and anxiety issues from his PTSD. In August 2007, the Veteran appeared for a social work consultation. Mental status examination revealed the Veteran was irritated and angry, had a constricted affect, and was agitated. He described thoughts of harming his neighbors and had to move as a result, indicated that he carried weapons, and reported incidents of road rage. He reported that he was retired, and enjoyed working out at the YMCA three times a week. He also indicated that he attended church frequently, and does some wood working at home. The Veteran contends that he is unable to work due to his PTSD symptoms. He contends, through his representative, that any employment activity since 2002 is marginal. He expressed that he was likely laid off due to prior issues at work, including absenteeism. He further asserts that his irritability precludes working in any setting that requires frequent interactions with customers, coworkers, and others. Thus, he argues that there are not jobs in the labor market that involve extreme limited exposure to other people. The evidence against the claim includes the May 2014 VA examiner’s findings. The examiner noted a diagnosis of bipolar disorder, but explained that the underlying mood symptoms appeared related to the Veteran’s prior history of substance use. The examiner further provided a detailed longitudinal history of the Veteran’s psychiatric medical treatment, and specific assessments of the Veteran’s limitations resulting from his PTSD symptoms. The evidence in favor of the claim includes the August 2003 and January 2006 VA examination reports. Both reports opined that the Veteran was precluded from working due to his PTSD symptoms. The 2003 examination indicated that the Veteran would be unable to carry on routine dialog or understand and follow instructions on a regular basis. The 2006 examination likewise indicated that the Veteran would have a difficult time maintaining employment due to the severity of his mood disorder and limited ability to concentrate on work activities. The 2003 and 2006 VA examination reports provide functional assessments for a period of time in which the Veteran has already been awarded a TDIU. The Veteran also submitted a private psychiatric evaluation from Dr. J. dated in February 2021. Dr. J. indicated that he reviewed the Veteran’s file and discussed his pertinent military history and post-service findings. He indicated that the 2003 VA examiner diagnosed PTSD and bipolar mood disorder, with the VA psychiatrist concluding that bipolar mood disorder was a comorbid condition related to the stress experienced in Vietnam, with consequent development of PTSD. As to the 2006 report, he observed that the examination reflected thorough assessment with specific findings that the Veteran was not employable. Dr. J. also discussed the August 2007 social work note, which indicated that the Veteran had questionable impulse control, deficiencies in insight and judgment, insomnia and sour mood. As to the findings of the 2014 VA examination, Dr. J. agreed that the prior assessments of bipolar disorder were essentially misdiagnoses. He also determined that the Veteran’s symptoms of PTSD and major depressive disorder were intermingled. He disagreed with the findings of the 2014 VA examiner that the symptoms and impact on functioning were able to be distinguished. He found that, after the development of strokes in 2011, the Veteran developed superimposed depressive disorder on the existing PTSD. Based upon his review of the record and pertinent medical literature, Dr. J. concluded that the Veteran was unable to maintain gainful employment prior to August 2003 and from January 2006. The Veteran reported that he last worked on May 10, 2002. The record does not indicate that he was marginally employed prior to that date. Therefore, despite the opinions expressing that the Veteran was unemployable for the entire period prior to August 2003, the record reflects that the Veteran was actually working until May 10, 2002. Accordingly, the Board finds that the evidence does not indicate that the Veteran was unable to maintain gainful employment prior to May 11, 2002, and that a TDIU for the period prior to May 11, 2002, must be denied. As for the periods from May 11, 2002, the Board finds the evidence is in relative equipoise. In this regard, both the 2003 and 2006 VA examiner found the Veteran to be unemployable as a result of his psychiatric disorder, and the 2021 private psychiatric evaluation likewise concluded that the Veteran was unable to maintain employment during these periods as a result of his psychiatric disorder. Therefore, although the record reflects that the Veteran stopped working due to being laid off with some interference on employment from other non-service connected disabilities, and the 2014 VA examiner concluded that the Veteran was not unemployable due to his service-connected psychiatric disorder, the evidence also showed significantly impaired impulse control, difficulty getting along with others, disturbances in motivation and mood, hypervigilance, impaired concentration, suicidal ideation, and other symptoms which appear incompatible with his prior work history. Accordingly, and resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran’s service-connected psychiatric disorder rendered him unable to secure or follow substantially gainful employment from May 11, 2002, to August 6, 2003 and after January 30, 2006. Therefore, entitlement to a TDIU for these periods, on an extraschedular basis, is granted. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. E. Wilkerson, 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.