Citation Nr: 21025162 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 17-27 973 DATE: April 27, 2021 ORDER A total disability rating based on individual unemployability (TDIU), prior to December 31, 2014, on an extraschedular basis is granted, subject to the rules and regulations governing the award of monetary benefits. FINDING OF FACT Prior to December 31, 2014, the evidence is at least in equipoise as to whether the Veteran’s service-connected disabilities rendered him unable to secure or follow substantially gainful employment. CONCLUSION OF LAW Prior to December 31, 2014, the criteria for an award of a TDIU on an extraschedular basis have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 2004 to September 2004 and from January 2005 to January 2009. In April 2017, a hearing was held before a Decision Review Officer (DRO) at the Regional Office (RO). In February 2020, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). Transcripts of these hearings have been associated with the Veteran’s claims file. The Board notes that, although additional evidence was received following the most recent Supplemental Statement of the Case (SSOC), including VA treatment records and examination reports, the Board has reviewed the evidence and determined that it is not pertinent or relevant to claim for entitlement to a TDIU prior to December 31, 2014. As this evidence is not relevant to the issue at hand, a remand for a new SSOC is not required and would only unnecessarily delay adjudication. Entitlement to a TDIU on an extraschedular basis prior to December 31, 2014. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § § 3.340(a)(1). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § § 4.16(a). In such an instance, if there is only one such disability, it must be rated at 60 percent or more; 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. Id. The Board must evaluate whether there are circumstances in the veteran’s case, apart from any non-service-connected conditions and advancing age, which would justify a TDIU. 38 C.F.R. §§ 3.341(a), 4.19; see Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § § 4.16(b). During the applicable appeal period (from the September 11, 2014 claim to December 31, 2014), the Veteran was service-connected for posttraumatic stress disorder (PTSD) (50 percent), tinnitus (10 percent), right thumb crush injury (0 percent), and gastroesophageal reflux disease (0 percent). As there is not one disability rated at 60 percent or higher, or one disability rated at 40 percent or more and combined rating of at least 70 percent, the threshold minimum percentage rating requirements for the assignment of a TDIU have not been met. The Board notes, however, that even though the Veteran does not meet the schedular criteria for consideration of a TDIU, consideration must still be given as to whether a TDIU may be granted on an extraschedular basis. 38 C.F.R. § 4.16(b). Entitlement to a TDIU on an extraschedular basis must be determined in the first instance by VA’s Director of Compensation Service. Id. In December 2020, the Veteran’s claim was referred to the Director of Compensation Service (Director) for extraschedular consideration. The Director rendered an advisory opinion and concluded that extraschedular entitlement to a TDIU was not shown due to the Veteran’s service-connected disabilities prior to December 31, 2014. The Director considered all of the evidence and specifically noted that while the evidence demonstrated that the Veteran reported struggles with concentration and focus that interfered with his work prior to December 2014, the evidence did not document mental health symptoms determined to be so severe as to preclude the Veteran from a gainful occupation at that time. The Director emphasized that the ultimate question was whether the Veteran, because of service-connected disabilities, was incapable of performing the physical and mental acts required by employment, not whether he could find employment. See Van Hoose, 4 Vet. App. At 363. Therefore, the Director determined that the overall evidence failed to support the contention that any of the service-connected disabilities or a combination of the effects of those disabilities supported an exceptional situation that prevented gainful employment prior to December 31, 2014. Although VA is required to obtain the Director’s decision before awarding extraschedular TDIU benefits in the first instance, the Board is not bound by the Director’s decision or otherwise limited in its scope to review that determination. Wages v. McDonald, 27 Vet. App. 233, 236-38 (2015) (citing 38 U.S.C. § 511(a), 7104(a); 38 C.F.R. § 4.16(b)). The Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). The record suggests that the highest level of education the Veteran obtained during the applicable appeal period was a high school diploma, with some college education. See February 2020 Veterans Application for Compensation Based on Unemployability. The record also shows that he was attempting to complete a motorcycle mechanic program at MMI. From September 2014 to December 2014, VA treatment records show that the Veteran was unemployed, and he reported that he had difficulty keeping a job. See September and October 2014 VA Treatment records. Notably, the Veteran appears to have lost his job after taking medical leave from work due to an earlier exacerbation of his PTSD symptoms that resulted in increased anxiety and panic attacks. See April 2014 VA Treatment records. He also appears to have been expelled from school due to this exacerbation. Id. VA treatment records show that, during the applicable appeal period, the Veteran still had been experiencing a pattern of anxiety, with symptoms of irritability, labile mood, excessive worry, inability to sleep, memory loss, lack of concentration, flashbacks, and nightmares. See September, October, and December 2014 VA Treatment records. There is no indication from the record that any of the Veteran’s other service-connected disabilities caused functional impairment or affected the Veteran’s ability to follow or maintain substantially gainful employment. (Continued on the next page)   Based on the foregoing evidence, the Board finds that, for the period prior to December 31, 2014, the evidence is at least in equipoise as to whether entitlement to a TDIU on an extraschedular basis is warranted. Namely, during this period, the record reflects that the Veteran was still experiencing an exacerbation of his PTSD which caused increased anxiety and resulted in him being unemployed. The Veteran also exhibited symptoms of irritability, labile mood, excessive worry, inability to sleep, memory loss, and lack of concentration that would further limit his ability complete worklike tasks in an efficient and timely manner. Likewise, in affording the Veteran the benefit of the doubt, entitlement to a TDIU on an extraschedular basis is granted for the period prior to December 31, 2014. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Metzner, Paul 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.