Citation Nr: 21025091 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 15-42 677A DATE: April 27, 2021 ORDER A total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to April 1, 2016, is denied. A TDIU on an extraschedular basis is granted from April 1, 2016, to September 14, 2016, subject to the laws and regulations governing the payment of benefits. FINDINGS OF FACT 1. The Veteran had active duty from April 1985 to April 1989, March 1996 to February 2001, September 2004 to March 2005, and June 2006 to May 2007. 2. The record reflects that the Veteran was employed full time until March 30, 2016; he has been in receipt of a 100 percent rating based on TDIU since September 14, 2016. 3. From April 1, 2016, to September 14, 2016, the Veteran’s service-connected posttraumatic stress disorder (PTSD) rendered him unable to obtain or maintain substantially gainful employment on an extraschedular basis. CONCLUSIONS OF LAW 1. The criteria for the grant of a TDIU prior to April 1, 2016, have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.16 (2020). 2. The criteria for entitlement to a TDIU on an extraschedular basis have been met from April 1, 2016, to September 14, 2016. 38 U.S.C. §§ 1155, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran testified at a hearing before the undersigned Veterans Law Judge in December 2018. A copy of the transcript has been associated with the claims file. In April 2019, the Board granted TDIU effective September 14, 2016, and remanded the issue of TDIU on an extraschedular basis prior to September 14, 2016, for additional development, to include referral to the Director of Compensation Service for consideration. An opinion was provided in October 2020. The case has now been returned to the Board for further appellate action. Turning to the relevant laws and regulations, TDIU ratings 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 two or more disabilities, provided at least one disability is ratable at 40 percent or more and there are sufficient additional service-connected disability ratings to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). In evaluating a veteran’s employability, consideration may be given to his or her level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.321(b), 4.16, 4.19. The mere fact that a claimant is unemployed or has difficulty obtaining employment is not sufficient. A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. 38 C.F.R. § 4.16(a). TDIU Prior to April 1, 2016 Although the Veteran has indicated that he last physically worked in January 2016, in separate correspondence from the Veteran’s employer both dated in November 2019 reflected that his last date of employment was March 31, 2016. For purposes of this decision, March 31, 2016, is considered his last official day of work. Thus, the evidence does not establish that he was unemployed at any time prior to April 1, 2016. Nonetheless, medical evidence dated prior to April 1, 2016, discussed how the Veteran’s PTSD affected him at work. Specifically, in July 2015, October 2015, and December 2015, a private clinician related that the alertness, vigilance, and central nervous system preparation required to serve as a police officer made it more difficult for the Veteran to fully recover from his traumatic in-service combat experiences and expressed concern about his continued employment. The Veteran related that recent incidents at work prompted him to think seriously about his future, including retiring from his law enforcement position and pursuing another career. In a December 2015 private medical opinion, the clinician diagnosed PTSD and observed that the Veteran experienced numerous traumatic events during his time working as a patrol officer for the Metro Transit Police. The clinician offered that the traumatic events had escalated to a point that they were becoming increasingly life-threatening. In January 2016, a second private medical opinion found that PTSD compromised the Veteran’s ability to perform his law enforcement job in a safe, effective, and professional manner. Before the Board can address whether the service-connected disabilities precluded substantially gainful unemployment prior April 1, 2016, there must first be evidence of unemployment. While it was apparent that the Veteran was having difficulty on the job due to PTSD symptoms, the record contains no evidence that he was unemployed prior to April 1, 2016; accordingly, the evidence does not support a TDIU prior to April 1, 2016. TDIU Since April 1, 2016 In April 2019, the Board granted TDIU effective September 14, 2016, which was the date that the Veteran’s service connected disabilities met the schedular criteria for a TDIU. The issue of whether a TDIU was warranted on an extraschedular basis was remanded for further development. 38 C.F.R. § 4.16(b). Pursuant to 38 C.F.R. § 4.16(b), when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16(a), such case shall be submitted for extraschedular consideration by the Director of Compensation Service in accordance with 38 C.F.R. § 3.321. In assessing whether an extraschedular TDIU is warranted, the determination must be supported by 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). Moreover, the sole fact that a claimant is unemployed or has difficulty obtaining employment is insufficient. Rather, the Board must determine whether a veteran’s combined service-connected disabilities, despite failing to meet the schedular criteria, inhibited his or her capacity to perform the physical and mental acts required for employment. The Veteran reported that he was last able to work in January 2016, at which time he became too disabled to maintain a substantially gainful occupation at a level consistent with prior experience. A review of the record reveals that he had experience as a police officer. The record further reveals that he graduated college and attended additional law enforcement training classes. As noted, his last official day of employment was March 31, 2016. Therefore, the record indicates that he was fully employed as of that date, even if not physically on the job as he asserts. Pursuant to the Board’s remand, the claim for an extraschedular TDIU prior to September 14, 2016, was considered under 38 C.F.R. § 4.16(b) in a January 2021 Administrative Decision in which the Director of Compensation Service found that the Veteran was not unemployable. The Director found that the workplace had had a dramatic shift in the labor force with less strenuous jobs and more reliance on computers, Internet, and email. The Director reflected that there were many jobs in the workplace that required only light activity and for which a person with a high school education would be capable of performing. The Director concluded that the overall evidence failed to support the contention that the Veteran’s disabilities prevented gainful employment. This evidence weighs against the appeal. Notwithstanding the opinion provided by the Director of Compensation Service, the Board is authorized to assign an extraschedular rating when appropriate. See Kuppamala v. McDonald, 27 Vet. App. 447, 458 (2015). To that end, the Social Security Administration (SSA) determined in a January 2017 decision that the Veteran was disabled for purposes of eligibility for SSA benefits. In so doing, SSA found that he had been disabled since January 20, 2016. The SSA decision opined that as a result of his disability, he was unable to perform his past relevant work and his skills did not transfer to other occupations. The SSA further determined that PTSD and other psychiatric symptoms limited the Veteran to unskilled work, and that his intrusive memories and anxiety would render him unable to keep pace in a non-stressful, unskilled job. The decision concluded that there were no jobs existing in significant numbers in the national economy that the Veteran would be able to perform. This evidence weighs in favor of the Veteran’s claim. In a subsequent December 2018 hearing before the undersigned Veterans Law Judge, the Veteran testified that he last worked in January 2016 and had received SSA benefits since that time. This evidence also weighs in favor of the Veteran’s claim. In a January 2016 medical treatment note, the Veteran reported that he went on disability from his job as a police officer and would not be returning to the police force. The clinician diagnosed PTSD and noted that his job as a police officer kept him in a trauma-response state; however, the clinician did not address his capacity to obtain or maintain employment outside of law enforcement. Subsequently, a March 2016 private examiner diagnosed worsening PTSD and determined that the Veteran was unable to safely perform the duties of a police officer as a result of his symptoms. However, the examiner opined that he was not totally and permanently disabled or unable to engage in any substantial gainful activity, offering that with proper treatment he could work in a non-law enforcement capacity. As such, the March 2016 weighs against the claim. Nonetheless, as there is evidence weighing both for and against the claim, it places the evidence at least in equipoise. For this reason, after resolving reasonable doubt in his favor, entitlement to a TDIU on an extraschedular basis is warranted from April 1, 2016, to September 14, 2016, and the appeal is granted to this extent. The Board has considered lay statements and testimony submitted by the Veteran regarding his capacity to work. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of symptomatology sufficient to satisfy the requirements of 38 C.F.R. § 4.16(b). Such competent evidence concerning the nature and extent of the Veteran’s unemployability has been provided by the medical personnel who have examined him and provided pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and clinical records) directly address the criteria under which his employability is evaluated. Moreover, as the examiners have the requisite medical experience to render medical opinions regarding the impact of the Veteran’s service-connected disabilities on his capacity to work and had sufficient facts and data on which to base the conclusions, the Board affords the medical opinions great probative value. As such, these records are more probative than the Veteran’s subjective evidence of unemployability and support entitlement to a TDIU on an extraschedular basis between April 1, 2016, and September 14, 2016. As noted, as of September 14, 2016, the Veteran has been 100 percent disabled based on TDIU. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Spigelman, 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the “Order.” If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board’s decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: • Appeal to the United States Court of Appeals for Veterans Claims (Court) • File with the Board a motion for reconsideration of this decision • File with the Board a motion to vacate this decision • File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: • Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court’s website at: http://www.uscourts.cavc.gov. The Court’s website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court’s website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board’s decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED