Citation Nr: 21026666 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 08-21 372 DATE: May 3, 2021 ORDER The claim of entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities prior to April 17, 2010, is granted on an extraschedular basis, effective July 1, 2007. FINDINGS OF FACT 1. As the Veteran's service-connected disabilities are rated 60 percent from February 27, 2007, to June 17, 2016, the percentage requirements for a schedular TDIU are not met during that time period; he is already in receipt of an award of TDIU on an extraschedular basis effective April 17, 2010. 2. The competent, probative evidence is at least evenly balanced as to whether the Veteran's service-connected disabilities have prevented him from obtaining or retaining substantially gainful employment from July 1, 2007. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for a TDIU due to service-connected disabilities, on an extra-schedular basis pursuant to 38 C.F.R. § 4.16 (b), are met from July 1, 2007. 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 in the United States Marine Corps. This matter is before the Board of Veterans' Appeals (Board) on appeal from a 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which, in pertinent part, denied a TDIU. This matter was previously before the Board in February 2010, September 2011, August 2012, June 2016, and September 2017; during the course of the appeal, the Board also addressed the Veteran's claims of entitlement to increased ratings for his service-connected PTSD and diabetes mellitus. In pertinent part, in the September 2017 Board decision, the Veteran was granted entitlement to TDIU on an extra-schedular basis pursuant to 38 C.F.R. § 4.16(b), effective from April 23, 2015. The Veteran appealed the September 2017 Board decision to the Court of Veterans Appeals (Court). In a November 2018 Order, the Court granted a Joint Motion for Remand vacating the Board's decision to the extent that it did not grant an earlier effective date for the award of extraschedular TDIU; the Court remanded the claim on appeal to the Board for further proceedings consistent with the Joint Motion. Subsequently, in September 2019, the Board granted TDIU prior to April 23, 2015, on an extraschedular basis, effective April 17, 2010, as well as the Veteran's claim for special monthly compensation based on the need for aid and attendance. The Veteran again appealed to the Court and the parties submitted a November 2020 Joint Motion for a Partial Remand (JMR) regarding the effective date of the grant of TDIU on an extraschedular basis. The appeal is now back at the Board for adjudication pursuant to the November 2020 JMR and the Court order. TDIU Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Rating Schedule provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341 (a). If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. The existence or degree of nonservice connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran's service-connected disabilities render him incapable of substantial gainful employment. 38 C.F.R. § 4.16 (a). 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). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19 (2016); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Prior to April 17, 2010, the Veteran was service connected for posttraumatic stress disorder (PTSD) at a 50 percent disability rating; diabetes mellitus, type II at a 20 percent disability rating; dye eyes at a 10 percent disability rating; excision of a bone tumor of the left femur with postoperative residuals at a noncompensable disability rating; and psychogenic impotency associated with PTSD with dissociative disorder at a noncompensable disability rating. The combined rating prior to April 17, 2010, is 60 percent. Accordingly, the percentage requirement for a schedular TDIU, pursuant to the provisions of 38 C.F.R. § 4.16(a), are not met prior to April 17, 2010. As the Veteran is currently in receipt of an extraschedular TDIU effective April 17, 2010, the remaining question is whether the Veteran's service-connected disabilities precluded gainful employment, for which his education and occupational experience would otherwise qualify him, prior to April 17, 2010. 38 C.F.R. § 4.16(a). Turning to the evidence of record, during a June 2007 mental health evaluation, the Veteran reported that he had worked for a large company for 31 years. In this position, he had good relationships with his supervisor and coworkers. He reported that he had been married for 35 years, and that his marriage was "great." He reported no major changes to daily activities or social function, except for avoidance, since he developed his mental conditions. He reported homicidal ideation as the reason he avoided people. He was diagnosed with PTSD and dissociative disorder. It was noted that these diagnoses were related. The private doctor found that the Veteran did not have difficulties performing activities of daily living (ADL) and was capable of managing his funds in his own best interest. His symptoms were noted as, "caus[ing] occupational and social impairment with occasional decrease in work efficiency and intermittent inability to perform occupational tasks although generally the person is functioning satisfactorily with routine behavior, self-care and normal conversation." The Veteran had no difficulty understanding commands, and he did not appear to pose a threat of persistent danger or injury to himself or others. He was given a GAF score of 50. In another private medical record from this time, the Veteran stated that his wife did not trust him to handle money. In his July 2007 Application for Compensation Based on Unemployability, the Veteran reported that his PTSD was the service-connected disability that prevented him from securing or following substantial gainful occupation. He noted that he stopped working at the end of June 2001 when he became too disabled to work. However, he later noted that he did not leave this position due to his disability and reported that he did not receive, or expect to receive, disability or retirement benefits. In an October 2007 correspondence, the Veteran's former employer reported that he had worked for the company as a mechanic from June 1970 and June 2001. The hours he worked, concessions made for any disability, and the amount of time lost due to any disability in the past 12 months were unknown. The Veteran was noted to have worked as an industrial mechanic. In an October 2007 private medical record, the Veteran was noted as having concentration problems. He would frequently forget names and dates. His wife noted that he would go somewhere two or three times and forget why he went there. He reported improved sleep, but feeling jittery. He was reported to a have an "ok" mood and a constricted affect as well as some concentration problems. In the February 2008 VA PTSD examination, the Veteran's symptoms were noted as constant, and the effect on his psychiatric disabilities on his total daily functioning was that he was avoidant. He did not receive treatment for his psychiatric disabilities, and he had not gone to the hospital for same in the past year. The Veteran had poor concentration and was suspicious. He was noted to have obsessive rituals, such as "checking," that were not severe enough to interfere with routine activities. His affect and mood were abnormal with findings of anxiety. His abstract thinking was abnormal, and his memory was mildly impaired. He did not have suicidal or homicidal ideation, but was noted to experience depression due to his psychiatric disabilities. The VA examiner opined that the Veteran was likely able to work despite his disability. In a February 2008 private medical record, the Veteran was noted as psychologically well, although it was noted that his anxiety affected his sleep. He was assessed as anxious, but otherwise appropriate. In an August 2008 private medical record, the Veteran reported that he was relaxing more, and that he had not been working. He noted that he was anxious, had intrusive thoughts, and difficulty sleeping. In another private medical record from this time, the Veteran complained of difficulty concentrating. In an October 2008 private medical record, the Veteran reported experiencing worry and "jittery" sensations. He noted that he had difficulties being in crowds. He otherwise reported that there was some improvement with his symptoms. He denied hallucinations, and homicidal and suicidal ideation and/or intent. In a December 2008 private medical record, the Veteran complained that he had difficulty with his memory and a decrease in his concentration. He denied hallucinations, as well as homicidal and suicidal ideation and/or intent. A June 2009 VA genitourinary examiner opined that such disability had no effect on the Veteran's usual occupation. In a December 2009 private medical record, the Veteran complained of anxiety and restlessness. He was noted to have a constricted affect and was restless. Finally, in May 2019, the Veteran submitted a private evaluation from Dr. K.B. Here, Dr. K.B. opined that "it is at least as likely as not that the Veteran's PTSD alone was severe enough to preclude him from securing and following substantially gainful employment since at least July 2007 to the present due to impairments in hypervigilance, sleep disturbance, irritability, depression and panic attacks as wells as symptoms concentration and confusion." In support of the opinion, Dr. B.K. noted the following facts: in March 2007 the Veteran endorsed symptoms of poor concentration, easy confusion, nightmares, hypervigilance, easy startle response, and with drawl from others due to irritability, anger, and anxiety. Dr. K.B. noted that the June 2007 VA PTSD Examination report reflected: symptoms of insomnia, avoiding crowds and shaking when he is with people, nightmares, hypervigilance, irritability, depression, panic attacks, and homicidal ideation including fears of what he would do if he were upset. Dr. K.B. also noted an October 2007 psychiatric appointment during which the Veteran voiced concerns such as concentration problems, forgetting names, and forgetting what he was doing. As stated above, the Court remanded this matter pursuant to a November 2020 JMR. In the JMR, the parties agreed that the Board inadequately weighed the evidence of the May 2019 private examiner's opinion versus the February 2008 VA medical opinion. Here, the Board is presented with two conflicting medical opinions which were each provided by medical professionals who are presumed to be competent to provide the opinions. The opinions were each supported by rationales. In this case, the Board finds that the evidence of record is in relative equipoise as to the Veteran's employability prior to April 17, 2010. Accordingly, affording the Veteran the benefit of the doubt, the Board will assign the effective date of July 1, 2007, based on Dr. K.B.'s opinion that the Veteran's PTSD alone was severe enough to preclude him from securing and following substantially gainful employment since at least July 2007. The appeal is granted. (Continued on the next page) T. Berry Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Yoo, 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.