Citation Nr: 21025201 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 15-24 997 DATE: April 27, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis prior to March 30, 2016, is denied. FINDING OF FACT Prior to March 30, 2016, the Veteran’s service-connected disabilities do not meet the percentage requirements for the award of a schedular TDIU and the evidence does not indicate that the nature and severity of his service-connected disabilities prevented him from performing gainful employment for which his education and occupational experience would otherwise qualify him. CONCLUSION OF LAW The criteria for entitlement to a TDIU on an extraschedular basis prior to March 30, 2016, have not 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 September 1965 to August 1968, including service in the Republic of Vietnam during the Vietnam Era. This matter is on appeal to the Board of Veterans’ Appeals (Board) from a June 2014 decision of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2018, the Board granted the Veteran’s claim for a TDIU from March 30, 2016, and denied a TDIU on an extraschedular basis prior to that date. The Veteran appealed the December 2018 Board decision to the United States Court of Appeals for Veterans Claims (Court). In September 2019, the Court granted a Joint Motion for Partial Remand (JMPR) that vacated the Board’s decision regarding the claim for a TDIU prior to March 30, 2016, and remanded it for further action. A remand order by the Board confers on a claimant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271 (1998). But it is substantial compliance, not strict or absolute compliance, that is the standard. D’Aires v. Peake, 22 Vet. App. 97, 105 (2008). In December 2020, the Board remanded this matter for further development, particularly to attempt to obtain Social Security Administration (SSA) disability benefits and Railroad Retirement Board (RRB) records. At the center of the Board’s concern in December 2020, was that the Veteran’s SSA and RRB disability claims were being considered together as a “joint freeze disability determination,” and that these entities had pertinent evidence. In December 2020, VA again attempted to obtain SSA records, and received a negative response to its request. Despite the fact that the agency of original jurisdiction (AOJ) did not notify the Veteran in a letter of the negative SSA response or make a formal finding of unavailability, the December 2020 negative SSA response was noted in the February 2021 Supplemental Statement of the Case (SSOC) and it is clear that SSA has no records. Notably, VA was able to obtain the RRB records and these records contain the SSA records related to the joint freeze disability determination. Thus, the Board concludes that there has been substantial compliance with its remand directives. Id. The Board must note that since June 2020 Kansas Legal Services (KLS) has submitted evidence and statements on the Veteran’s behalf. However, KLS has not filed with VA a VA Form 21-22a, Appointment of Individual as Claimant’s Representative. Notably, in October 2020 the AOJ recognized KLS’s submissions and invited the Veteran to file a VA Form 21-22a, as required, in favor of KLS. To date, VA has not received the required form to appoint KLS as the Veteran’s representative. A March 2018 VA Form 21-22, Appointment of Veterans Service Organization as Claimants Representative, appoints the Veterans of Foreign Wars (VFW) as the Veteran’s representative. The Veteran has not withdrawn the VA Form 21-22 appointing the VFW as his representative, either by expressly stating his desire to do so or by submitting the required form for appointing a new representative. Thus, the VFW remains the Veteran’s representative in this case. 1. Entitlement to TDIU on an extraschedular basis prior to March 30, 2016. VA will grant a total disability rating when the evidence shows that a veteran is precluded, by reason of service-connected disabilities, from securing and following substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The Veteran has been granted a TDIU on and after March 30, 2016. See December 14, 2018, Board decision. For purposes of entitlement to a schedular TDIU, 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 purposes meeting the requirement of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). From November 22, 2013, to June 26, 2014, service connection was in effect for posttraumatic stress disorder (PTSD) and/or unspecified depressive disorder, rated 30 percent disabling; residuals of full body burns, rated 20 percent disabling; and tinnitus, rated 10 percent disabling. The Veteran had a combined rating of 50 percent. From June 27, 2014, to January 22, 2018, the Veteran’s ratings for residuals of full body burns and tinnitus were the same but his rating for PTSD and/or unspecified depressive disorder was rated 50 percent disabling, for a combined rating of 60 percent. The criteria for consideration of a schedular TDIU are therefore not met prior to January 23, 2018. If the applicable percentage standards set forth in 38 C.F.R. § 4.16(a) are not met, the issue of entitlement to a TDIU may be submitted to the Director of the Compensation Service (Director) for extraschedular consideration where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16 (b); Fanning v. Brown, 4 Vet. App. 225 (1993). The Director concluded in September 2018 that the Veteran was not unemployable due to his service-connected disabilities and that a TDIU was not warranted under the provisions of 38 C.F.R. § 4.16(b). However, there is no restriction on the Board’s ability to review the adjudication of an extraschedular rating once the Director determines that an extraschedular rating is not warranted. Anderson v. Shinseki, 22 Vet. App. 423, 427-8 (2009). The term “substantially gainful occupation” is not defined in the rating schedule. Rather, the Court in Ray v. Wilkie, found the phrase has two components: an economic one and a noneconomic one. 31 Vet. App. 58 (2019). In assessing the veteran’s ability to secure and follow a substantially gainful occupation, the Board is to consider the veteran’s history, education, skill, and training as well as physical abilities and mental abilities required by the occupation at issue. Id. Such specific physical ability factors include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. Id. Specific mental ability factors include memory, concentration, ability to adapt to change, handle workplace stress, getting along with coworkers, and demonstrating reliability and productivity. Id. The Court in Ray also acknowledged that the Board’s prior determination that enough evidence warranted referral to the Director of Compensation and Pension for consideration for extraschedular consideration of a TDIU, was a lower factual threshold and does not necessitate a later grant of extraschedular TDIU. Thus, the Board now considers the evidence of whether an extraschedular TDIU is warranted prior to March 30, 2016, de novo, in light of the newly obtained evidence as well as the economic and noneconomic components as outlined in Ray. 31 Vet. App. 58. The central question is “whether the [V]eteran’s service-connected disabilities alone are of sufficient severity to produce unemployability,” not whether the Veteran could find employment. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether a Veteran is unemployable for VA purposes, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2016); Hersey v. Derwinski, 2 Vet. App. 91 (1992); Faust v. West, 13 Vet. App. 342 (2000). A Veteran need not show 100 percent unemployability in order to be entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Because there has been no contention or indication that the Veteran’s residuals of full body burns or tinnitus interfere with the Veteran’s ability to obtain and maintain substantially gainful employment, the Board’s analysis will primarily focus on the occupational impact of his service-connected psychiatric disability. SSA has found the Veteran disabled as of December 23, 1987. In May 2015, SSA noted that the Veteran had filed for disability benefits, but that no records were obtained. In December 202 SSA reported that it had no records in its possession. Thus, the basis of this finding of disability is unknown. In addition, SSA determinations, while relevant, are not binding upon the Board. Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). In terms of education, the Veteran has a high school education. In terms of employment, he has worked for the railroad, a driver, and lastly as a janitor in December 2008. Due to his physical ailments, he once attempted to work as a loan officer in the mortgage industry but found that he lacked the skills for the job. Records from the RRB show that it found that the Veteran was disabled on and after April 15, 2009. Records recently obtained from the RRB show that the Veteran had claimed permanent and total disability with the RRB based on degenerative joint disease (DJD) of the hips, knees, and spine (all nonservice-connected conditions). The RRB application documents that the Veteran was extremely depressed at the time he filed the application. However, it does not note any psychiatric disability or any impairment on the Veteran’s ability to work from a psychiatric disability. See September 23, 2010, RRB record. The Veteran was afforded a VA examination by a psychologist in May 2014. The Veteran’s spouse reported that, while he was still working, she often had to get him out of bed to go to work due to his PTSD symptoms and that he was easily triggered while at work. The Veteran did not report the reason for his retirement. The examiner listed the Veteran’s symptoms for rating purposes as including memory loss but characterized it as mild. The examiner found that the Veteran’s psychiatric symptoms would cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The Veteran was found competent to manage his financial affairs. The Veteran submitted a March 30, 2016, examination by a private physician, who opined that the Veteran’s depression and memory impairment were severe enough to render him unable to manage his own financial affairs, drive safely, or live on his own without assistance. Based primarily on this examination report, VA granted entitlement to a special monthly pension based on the need for aid and attendance and found the Veteran incompetent to handle disbursement of funds. In an August 2018 statement, the AOJ recommended that entitlement to a TDIU on an extraschedular basis be granted from June 27, 2014, to January 22, 2018. In making this recommendation, the AOJ relied on the fact that the Veteran’s psychiatric disability was rated 50 percent disabling during that period. The Director disagreed with this recommendation in September 2018 and concluded that entitlement to a TDIU on an extraschedular basis was not warranted during the period on appeal. The Director reasoned that the Veteran’s experienced only an occasional decrease in work efficiency due to PTSD, and that he generally functioned satisfactorily, with normal routine behavior, self-care, and conversation. The Director found that the Veteran was limited only in performing the duties of certain positions. The Director’s finding is not evidence, it is simply a decision that is adopted by the RO and reviewed de novo by the Board. Wages v. McDonald, 27 Vet. App. 233, 239 (2015). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Again, the Court in Ray, has acknowledged, that a decision to refer a matter for extraschedular consideration is a quasi-factual finding and does not automatically bind the Board to award an extraschedular rating. Ray, 31 Vet. App. 58. As will be outlined below, the Board finds on a thorough de novo examination of the record, to include the newly associated medical evidence, that an extraschedular TDIU award is not warranted prior to March 20, 2016. When this matter was before the Board in December 2018, it awarded a TDIU on an extraschedular basis effective March 30, 2016, based upon the Veteran’s service-connected posttraumatic stress disorder (PTSD) alone. The Board noted, and again notes, that the Veteran was granted special monthly pension with a finding that the Veteran was incompetent to handle disbursement of funds. The Board based these findings on the basis of a March 30, 2016, private examiner’s report. Again, it is reasonable to find that a veteran who could not live on his own without assistance and who could not handle his own finances was not capable of securing and following substantially gainful employment. The question at hand is whether prior to March 30, 2016, the evidence supports a finding that the Veteran’s service-connected disabilities resulted in his inability to obtain and maintain substantially gainful employment. As noted above, there is no indication that the service-connected residuals of body burns and/or tinnitus interfered with the Veteran’s ability to obtain and maintain substantially gainful employment. Following its last remand, the Board obtained records from the RRB. VA has not been able to obtain any records from SSA and these records are unavailable. However, the Veteran’s RRB records show that he claimed permanent and total disability in 2009 due to numerous nonservice-connected physical ailments. The Board acknowledges that the Veteran seemed extremely depressed at the time he filed the RRB application. However, the VA examination in May 2014 shows that the Veteran’s psychiatric impairment caused only mild symptoms, and occupational and social impairment with occasional decrease in work and efficiency. (Continued on the next page)   Notwithstanding the prior referral of this matter to the Director of Compensation, the Board finds the Veteran was able to obtain and maintain substantially gainful employment prior to March 30, 2016, despite his PTSD. The basis for the award of SSA benefits in 1987 is unknown and there are no SSA records available. The Veteran has not shed any light on the matter, and the RRB records show that the Veteran was granted permanent and total disability in 2009 based upon several nonservice-connected disabilities. The RRB records do not identify a claim of psychiatric impairment, and VA examination in May 2014 identifies mild symptoms, that cause only occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Moreover, the May 2014 VA examiner concluded that the Veteran was able to manage his financial affairs. There is no indication that PTSD interfered with the Veteran’s work prior to March 30, 2016. While the Board does not doubt that prior to March 30, 2016, the Veteran’s PTSD (and other service-connected disabilities) caused impairing symptomatology. His impairment, however, was already recognized by the ratings assigned to each of his service-connected disabilities. The Board finds that the preponderance of the evidence is against concluding that any alone or a combination of all the service-connected disabilities prior to March 30, 2016, precluded substantially gainful employment. As noted above, consideration cannot be given to the impairing effects of nonservice-connected disabilities and, therefore, the Board concludes that it is less likely than not that the Veteran’s service-connected disabilities precluded substantially gainful employment prior to March 30, 2016. The Veteran is not entitled to an extraschedular TDIU prior to March 30, 2016. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Joseph R. Keselyak, 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.