Citation Nr: 21026642 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 14-28 981A DATE: May 3, 2021 ORDER For the appeal period prior to October 18, 2011, entitlement to a total disability based on individual unemployability (TDIU) on an extraschedular basis, is granted. FINDING OF FACT Prior to October 18, 2011, the Veteran's service-connected disabilities precluded his ability to secure and follow substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU prior to October 18, 2011, are met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Army from February 1969 to April 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in February 2021, when it was remanded for development. The case has been returned to the Board for further appellate review. VA will grant entitlement to TDIU when the evidence shows that the Veteran is precluded, by reason of his 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 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 sole fact that the Veteran was or is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but 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 total rating based on individual unemployability due solely to the service-connected conditions. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); see also Blackburn v. Brown, 5 Vet. App. 375 (1993). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Marginal employment includes occupation incapable of producing income that is more than marginal, Ortiz-Valles v. McDonald, 28 Vet. App. 65, 71 (2016), and occupation where earned annual income exceeds the poverty limit but is done so in a protected environment such as a family business or sheltered workshop, 38 C.F.R. § 4.16(a). The regulations provide that if there is only one service-connected disability impeding employability, 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. 38 C.F.R. § 4.16(a). Because it is established VA policy that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled, the Board will submit to the Director of Compensation and Pension Services (Director) for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the above percentage standards. 38 C.F.R. § 4.16(b). The Board cannot assign an extraschedular rating in the first instance, but must specifically adjudicate whether to refer a case to the Director for consideration of an extraschedular rating under section 4.16(b) when the issue is either raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008) (citing Thun v. Peake, 22 Vet. App. 111, 115 (2008)). Section 4.16 of VA's regulations does not require a finding that the schedular ratings are inadequate to compensate for the average impairments in earning capacity caused by particular disabilities, but requires only a finding that the service-connected disabilities render a particular veteran unemployable. VAOPGCPREC 6-96 (August 16, 1996). First, the Board notes that entitlement to TDIU is an element of all appeals of an increased evaluation when such claim is raised by the record or asserted by the Veteran. Rice v. Shinseki, 22 Vet. App. 447, 454-55 (2009). Although the Veteran filed a formal claim for TDIU in March 2011, the Board previously found that the Veteran's entitled TDIU claim is part of his appeal for an increased evaluation for posttraumatic stress disorder (PTSD) initiated on January 21, 2011. The Board will therefore consider whether the Veteran's service-connected disabilities precluded securing and following substantially gainful occupation as early as January 21, 2010. Prior to October 18, 2011, the Veteran's combined evaluation was 60 percent, and the Veteran did not meet the schedular requirements for a TDIU. In February 2021, the Board found that referral to the Director for extraschedular consideration was merited in this case and remanded the issue for referral. As the Director of Compensation Service has already considered TDIU on an extraschedular basis for the remainder of the period, so the Board is able to adjudicate the claim. See Barringer, 22 Vet. App. at 244. In an opinion issued on March 12, 2021, the Director of Compensation Service determined that entitlement to a TDIU on an extraschedular basis was not warranted. The Director concluded that the service-connected disabilities, including PTSD, bilateral ankle arthritis, low back strain, right bicep injury, and right foot scar, did not render the Veteran unable to perform substantially gainful employment. The Director noted the Veteran's PTSD symptoms included social isolation, depression, anxiety, irritability, difficulty sleeping, an exaggerated startle response, and an inability to tolerate day-to-day relationships in the workplace and at home, but indicated the record reflected moderately disabling mental health symptoms. The Direct also noted the bilateral ankle disabilities require use of braces and a cane and limit prolonged walking, and the right bicep injury results in pain and weakness in the right arm aggravated by physical exertion. The Director concluded that, while the record reflects some impairments to functioning from the service-connected disabilities, it did not show the Veteran's ability to maintain employment was entirely compromised by the service-connected disabilities. Concerning this determination, the Board is not bound by an adverse determination by the Director regarding extra-schedular entitlement to a TDIU. The Court has determined that the Director's decision is, in essence, a decision by the AOJ and is no different than an RO's decision in terms of its effect on the Board's jurisdiction and standard of review. See Wages v. McDonald, 27 Vet. App. 233 (2015). The Board finds the Director did not fully consider the effects of the physical impairments in conjunction with the limitations caused by the PTSD in light of the Veteran's employment and educational history. The Veteran submitted a formal TDIU claim in March 2011, asserting that his PTSD symptoms prevent him from securing or following substantially gainful employment. He reported last working in January 1996, as a supply systems operator for an electric company. The Veteran reported finishing four years of high school, and not receiving any further education or training after that. In December 2016, the Veteran submitted an opinion letter from a private vocational expert, who noted that the Veteran's most recent job as a support systems operator was industry-specific and did not provide the Veteran any transferrable skills. The vocational expert opined that the Veteran's skills are outdated, having last worked in 1996. Regarding the Veteran's physical abilities, a November 2011 letter from a private physician describing treatment over the previous year indicates the bilateral ankle arthritis manifested in pain, limited motion, weakness, and instability. The Veteran was noted to be unable to walk or stand for long periods of time. As noted by the Director, the Veteran's right bicep injury manifests in pain and weakness in the right arm, and the Veteran experiences back pain associated with his low back strain. Regarding the Veteran's PTSD symptoms, a December 2010 letter from the Veteran's VA psychologist noted difficulty relating to and trusting others, resulting in a tendency to spend most time alone. The psychologist noted intrusive thoughts, two to three nightmares a month, grief issues, and a hyper-startle reaction to loud noises. The psychologist characterized the Veteran as having a long-term inability to tolerate day-to-day relationships either in the workplace or at home, and opined that this made him unemployable. At a February 2011 VA psychiatric examination, the Veteran reported sleep impairment and up to four nightmares a month. He reported some discord with his family relationships, and difficulty making friends; the relationships he described appeared to be superficial. The Veteran's VA treatment records during this period reflect notations of isolation, avoidance of crowds, and withdrawal, including needing to live and work alone, and having chosen to spend Thanksgiving of 2010 alone. After review of the evidence of record, the Board finds a TDIU is warranted prior to October 18, 2011, as the symptoms of the Veteran's service-connected disabilities would have precluded substantially gainful occupation. The Board notes the Veteran's physical disabilities interfere with his ability to perform physical labor or jobs requiring prolonged standing or walking, and his PTSD symptoms significantly limit his ability to work in jobs requiring interaction with coworkers, clients, customers. The Board also notes the Veteran finished high school, but does not have any educational or vocational training beyond that, and that the vocational expert opined that his skills are industry-specific and outdated, which limits the types of more sedentary work that might otherwise be available to him, such as clerical office work, filing, or data entry. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that a TDIU prior to October 18, 2011 on an extraschedular basis is warranted in this case. Romina A. Casadei Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Josey, 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