Citation Nr: 21024321 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 09-42 165 DATE: April 22, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) beginning July 24, 2007, is granted, subject to the law and regulations governing the payment of monetary benefits. FINDING OF FACT Prior to August 16, 2012, the evidence of record demonstrates that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to a TDIU beginning July 24, 2007, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from February 1966 to February 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO), which was based on a claim for increased rating that was filed on July 31, 2007. This claim was previously before the Board in July 2020, at which time it was remanded for further development. TDIU TDIU may be granted where a Veteran’s service-connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16 (2017). Where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) (2015) that an informal claim “identify the benefit sought” has been satisfied and VA must consider whether the Veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU). Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). 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 regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). A total disability rating may also be assigned on an extraschedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). Marginal employment shall not be considered as constituting substantially gainful employment. 38 C.F.R. § 4.16(a). VA policy is to grant TDIU, regardless of the percentages, when service-connected disability actually renders a veteran unemployable. 38 C.F.R. § 4.16(b). Where there is evidence that a veteran is unemployable by reason of service-connected disability, but does not meet the percentage requirements, the Board is required to remand the claim, so that it can be referred to VA’s Director of Compensation Service for adjudication in accordance with 38 C.F.R. § 4.16(b). Once a referral for an extraschedular TDIU rating under § 4.16(b) is made by the Board, the Director of Compensation Service then determines whether an extraschedular TDIU evaluation under § 4.16(b) is warranted. At that juncture, only then does the Board have jurisdiction to decide the TDIU claim on the merits when it returns. Pursuant to 38 C.F.R. § 4.16(a), marginal employment or the ability to work sporadically shall not be considered substantially gainful employment. Marginal employment generally shall be deemed to exist when a veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. In Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court of Appeals for Veterans Claims, held that “substantially gainful employment” has both an economic and non-economic component. 38 C.F.R. § 4.16(b). The economic component includes the Veteran’s ability to earn more than a marginal income as evidenced by federal poverty thresholds. The non-economic component involves assessing the Veteran’s actual ability to work. Factors to be discussed include (1) the Veteran’s history, education, skill, and training; (2) whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and (3) whether the Veteran has the mental ability to perform the activities required by the occupation at issue. Entitlement to a TDIU for the period prior to August 16, 2012 Prior to August 16, 2012, the Veteran was service connected for PTSD at 30 percent disabling from February 29, 2008, to August 16, 2012, and 10 percent disabling prior to February 29, 2008. Thus, he did not meet the percentage requirements for schedular consideration for TDIU during the entire appeal period. However, pursuant to the December 2020 Board remand, the Veteran’s claim was referred to the Director of Compensation Service for an extraschedular evaluation under 38 C.F.R. § 4.16(b) (2019). The Veteran submitted his Application for Increased Compensation Based on Unemployability, VA Form 21-8940, in July 2007 and indicated that his PTSD prevented him from securing or following any substantially gainful employment. The Veteran last worked on July 24, 2007 when had to retire as a clerk. He worked full-time in that position for 19 years. He also completed two years of college but did not have any other education or training since becoming too disabled to work. The Veteran received a mental health evaluation by Dr. C. G. in February 2008 and the clinician noted that the Veteran last worked in July 2007 as a medical clerk at a hospital. However, he was having too much anxiety and was feeling very angry; the Veteran indicated that he was afraid “I might lose it.” As a result, his mental health physician took him out of work. The Veteran received a VA PTSD examination in June 2008 and indicated that he stopped working in July 2007 because his doctor “thought it was the best.” He also stated that he “couldn’t handle it” and it “felt like I was going to lose it any minute.” The examiner noted that it appeared that the Veteran had led a very constricted life for the past several decades and it appeared that he finally left his job in large part due to chronic PTSD. In January 2009, the U.S. Office of Personnel Management submitted correspondence that the Veteran was too disabled for his position as a medical clerk due to his PTSD and prostate cancer. Records from the Social Security Administration reflect that the Veteran’s disability began on July 31, 2007, due to a primary diagnosis of peripheral vascular arterial disease and a secondary diagnosis of mood disorders. An Administrative Review for entitlement to TDIU prior to August 16, 2012, was submitted in December 2020. Based upon evidence on examination of severe impairment as of June 2008 and evidence that the Veteran’s PTSD was a significant contributing factor in his leaving of work and subsequent employment, entitlement to TDIU based on an extraschedular basis prior to August 16, 2012, was recommended. An advisory opinion for entitlement to TDIU prior to August 16, 2012, was submitted in January 2021 and the Director of Compensation Service found that the records indicated that the Veteran had mental health symptoms most closely approximating a moderately disabling condition. Furthermore, the records did not support a finding that the mental health condition resulted in a totally disabling condition for the period prior to August 16, 2012. Specifically, the evidence did not show that the mental health condition would have prevented all forms of occupational employment, and entitlement to extraschedular TDIU benefits was not established. Regarding the economic component of TDIU, the Board notes that the Veteran last worked full time on July 24, 2007, as a medical clerk at a hospital. He was unable to recall how much he earned per month but indicated the most he ever earned in a year was $30,000 in 2006. The Board will resolve reasonable doubt in the Veteran’s favor and award entitlement to TDIU, beginning July 24, 2007, the date he last worked full time as a medical clerk, and the first time the record reflects an ascertainable increase had occurred with respect to his service-connected disability within one year prior to his increased rating claim of July 31, 2007. Based on the evidence presented in this case, the Board finds that the functional impairment associated with the Veteran’s PTSD is of such nature and severity as to preclude substantially gainful employment beginning on this date. While the Director of Compensation Service found that the evidence did not show that the mental health condition would have prevented all forms of occupational employment, the Board highlights the Veteran’s limited education and limited employment history. He has primarily worked in a social capacity, as his employment as a medical clerk for 19 years required constant interaction with patients. However, such employment was not feasible prior to August 16, 2012, due to his service-connected PTSD; it caused him to become noticeably more irritable to the point where he “felt like I was going to lose it any minute.” Therefore, resolving reasonable doubt in the favor of the Veteran, the Board finds that the evidence of record supports entitlement to an award of TDIU beginning July 24, 2007. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Daniels, 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.