Citation Nr: 21023513 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 13-18 735A DATE: April 20, 2021 ORDER As of May 2, 2009, a total disability rating based on individual unemployability (TDIU) due to service-connected posttraumatic stress disorder (PTSD) on an extra-schedular basis is granted. FINDING OF FACT Resolving all doubt in the Veteran’s favor, his service-connected PTSD renders him unable to secure or follow a substantially gainful occupation consistent with his education and work history as of May 2, 2009. CONCLUSION OF LAW As of May 2, 2009, the criteria for a TDIU based on service-connected PTSD on an extra-schedular basis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1965 to August 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in July 2010 by a Department of Veterans Affairs (VA) Regional Office. In April 2016, the Veteran and his spouse testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In June 2016, December 2018, and January 2021, the Board remanded the case for additional development and it now returns for further appellate review. Entitlement to TDIU. The Veteran contends that his service-connected PTSD renders him unemployable. In this regard, while he is service-connected for diabetes mellitus, type II, and residuals of wart removal of the left hand, he does not contend, and the evidence does not suggest, that such disabilities impact his employability. Thus, the Veteran claims that a TDIU due to his service-connected PTSD is warranted. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran 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, such disability shall be ratable as 60 percent or more, and if there are two or more 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). Rating boards should submit to the Director of 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 percentage standards set forth in 38 C.F.R. § 4.16(a). 38 C.F.R. § 4.16(b). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when 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 (1991) (level of education is a factor in deciding employability); 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). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. 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, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the United States Court of Appeals for Veterans Claims (Court) held that the initial extra-schedular referral decision under § 4.16(b) should address whether there is “sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities.” The Court also defined the term “unable to secure and follow a substantially gainful occupation” in § 4.16(b) to include two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of the veteran’s history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. For the entire appeal period, stemming from March 26, 2009, the date of service connection for his PTSD, the Veteran is service-connected for PTSD, evaluated as 50 percent disabling; diabetes mellitus, type II, evaluated as 10 percent disabling, effective January 21, 2016; and residuals of wart removal, evaluated as 0 percent disabling. Thus, he was in a combined 50 percent rating prior to January 21, 2016, and a combined 60 percent rating thereafter. 38 C.F.R. § 4.16(a). Thus, he does not meet the schedular threshold for a TDIU. However, such may nonetheless be assigned on an extra-schedular basis pursuant to 38 C.F.R. § 4.16(b). In this regard, pursuant to the January 2021 Remand, the case was referred to the Director for extra-schedular consideration later the same month, and an advisory opinion was received in February 2021. While the Director found that a TDIU on an extra-schedular basis was not warranted, the Board resolves all doubt in favor of the Veteran and finds that his service-connected PTSD renders him unable to secure or follow a substantially gainful occupation consistent with his education and work history. Therefore, a TDIU due to service-connected PTSD is warranted on an extra-schedular basis. 38 C.F.R. § 4.16(b). The Veteran’s May 2017 Application for Increased Compensation Based on Unemployability (VA Form 21-8940) reflects that he completed four years of high school and four years of trade school to become an electrician. He reported that he was employed as an electrician planner with Delmarva Power from March 1969 to November 2006, and with Valero Refining Group November 2006 to May 2009, and last worked on May 1, 2009. In this regard, the record reflects that the Veteran retired in May 2009 after a series of issues with supervisors, authority figures, and coworkers. Notably, a February 2009 disciplinary action notes that he behaved in an unacceptable manner on two occasions in January 2009, to include engaging in fist pounding, yelling, and provoking other employees and members of supervision, and speaking in a loud and forceful voice. Subsequent to such action, the Veteran was hospitalized from February 13, 2009 to March 3, 2009, for treatment of his PTSD and stress at work following a change of management due to symptoms of irritability, an inability to control his anger, and thoughts of physical harm to others. While a June 2010 VA examination reflects a determination that the Veteran’s PTSD only minimally affected his occupational functioning as he had worked at a utility company for 41 years and lost no time from work due to such disability, it also shows that he periodically had issues with supervisors, authority figures, and coworkers due to his PTSD. Furthermore, it was observed that he exhibited unprovoked irritability and his cognitive functions were considered mildly to moderately impaired in the area of concentration and attention. Thereafter, in a December 2010 statement, the Veteran reported that his PTSD caused him to be very intolerant with any form of supervision and prevented him from seeking work due to the fear of future disciplinary actions and/or possibly harming someone. In November 2012, the Veteran submitted a Disability Benefits Questionnaire (DBQ), completed by his private treatment provider, T.W., a licensed clinical social worker. At such time, she reported that the Veteran worked as an electrician for 35 years prior to his retirement in 2009 and served as a volunteer in the fire department; however, traumatic events in the latter position led to a worsening of his PTSD and, thus, he avoided volunteer occupational activities. Overall, T.W. found that the Veteran’s PTSD resulted in occupational and social impairment with reduced reliability and productivity. At the April 2014 Board hearing the Veteran testified that, due to the symptoms of his PTSD, he was unable to work and was prompted to retire. In this regard, he indicated that he worked at the same company for most of his career, but became frustrated with the workplace culture and felt like he could not control himself from physical violence. The Veteran also expressed concern over his anger and fear that he would not be able to control his rage if he interacted with other people, and therefore, isolates himself. In April 2016, a VA examiner noted that the Veteran last worked in 2009, at which time he had significant difficulty with the new management at his company, and observed that his PTSD resulted in, among other symptoms, difficulty in establishing and maintaining effective work and social relationships and difficulty in adapting to stressful circumstances, including work or a work-like setting. Similar to T.W., he found that such disability resulted in occupational and social impairment with reduced reliability and productivity. Nonetheless, treatment records dated throughout the appeal period reflect the Veteran’s ongoing complaints related to his PTSD, to include irritability, and treatment plans for managing his anger, frustration, and irritability. Based on the foregoing, the Board resolves all doubt in the Veteran’s favor and finds that, since May 2, 2009, the day after he retired, his service-connected PTSD renders him unable to secure or follow a substantially gainful occupation consistent with his education and work history. In this regard, the record shows that he had issues with supervisors, authority figures, and coworkers because of his PTSD. Specifically, the Veteran testified at the April 2014 Board hearing that his PTSD symptoms led to his retirement as he became frustrated with the workplace culture and felt like he could not control himself from physical violence. Such report is consistent with the February 2009 disciplinary action that reflects that the Veteran behaved in an unacceptable manner on two occasions in January 2009, to include engaging in fist pounding, yelling, and provoking other employees and members of supervision, and speaking in a loud and forceful voice. Furthermore, such episode led to the Veteran’s hospitalization later that month due to symptoms of irritability, an inability to control his anger, and thoughts of physical harm to others. Moreover, the April 2016 VA examiner found that the Veteran’s PTSD resulted in difficulty in establishing and maintaining effective work and social relationships and difficulty in adapting to stressful circumstances, including work or a work-like setting, and treatment records throughout the appeal period reflect plans for managing his anger, frustration, and irritability. The Board acknowledges the evidence unfavorable to the Veteran’s claim, to include the June 2010 VA examiner’s determination that the impact of his PTSD on his occupational functioning was minimal and T.W.’s and the April 2016 VA examiner’s assessment that such disability resulted in, at most, occupational and social impairment with reduced reliability and productivity. However, the nature of the Veteran’s PTSD symptoms, to specifically include his irritability, an inability to control his anger, thoughts of physical harm to others, and difficulty in adapting to stressful circumstances, including work or a work-like setting, which has led to his retirement, a hospitalization, and ongoing treatment for managing his anger, frustration, and irritability, render him unable to secure or follow a substantially gainful occupation consistent with his education and work history. Therefore, the Board resolves all doubt in the Veteran’s favor and finds that, as of May 2, 2009, a TDIU on an extra-schedular basis is warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Waite 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.