Citation Nr: 21026789 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 19-07 106 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) for the appeal period prior to November 24, 2008, is granted. FINDING OF FACT For the entire appeal period prior to November 24, 2008, the Veteran's service-connected disabilities render him unable to secure or follow substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU have been met beginning April 24, 2007. 38 U.S.C. §1155 (2018); 38 C.F.R. §§3.340, 3.341, 4.16(b) (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1968 to February 1970. His military records note that he had foreign service with the United States Army Pacific (USARPAC), and his awards and decorations include the Combat Infantryman Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which, in part, granted a TDIU effective November 24, 2008. The Veteran disagreed with the assigned effective date of November 24, 2008. In August 2019, the Board issued a decision denying a TDIU prior to November 24, 2008. The Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2020 Order, the Court granted a Joint Motion for Remand (JMR) filed by the parties vacating the August 2019 Board decision and remanding the matter back to the Board. Thereafter, in January 2021, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) for referral to the Director of Compensation Service. The matter is once again before the Board. TDIU may be assigned when a Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38C.F.R. §4.16. A TDIU is warranted where the combined schedular evaluation for service-connected disabilities is less than total, or 100 percent. 38C.F.R. §4.16 (a). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded from securing or following a substantially gainful occupation by reason of his or her service-connected disabilities. 38C.F.R. §§ 3.340, 3.341, 4.16. Under 38C.F.R. § 4.16 (a), if there is only one such disability, it must be rated at 60 percent or more to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent.38C.F.R. § 4.16 (a). It is, however, VA's policy to grant TDIU to any veteran who is unable to unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38C.F.R. § 4.16(b). In Ray v. Wilkie, 31Vet. App.58, 73 (2019), the Court defined the term "unable to secure and follow a substantially gainful occupation" as having two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of the following: the Veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. The Veteran's employment history includes working part time in real estate sales from 2005 to 2009. Prior to that, from 1973 to 1998, he was employed full time as a purchasing agent. His education history includes completing high school and three years of college. In August 2016, the Board granted a 70 percent rating for the Veteran's service-connected PTSD effective November 24, 2008, the date that medical evidence showed an increase in severity of the Veteran's PTSD. Although the Veteran appealed that determination to the Court, asserting entitlement to a 100 percent schedular rating, the Court affirmed the Board's decision in December 2017. The Board also took jurisdiction in August 2016 of the TDIU issue pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009) and remanded the issue to obtain income information to verify the Veteran's assertion that he could not work and earn a substantially gainful income beginning in 2007. The Board subsequently found, as noted in its January 2021 remand, that the Veteran apparently was neither substantially nor gainfully employed in 2007 and 2008. By rating decision dated in March 2017, which is the decision on appeal, the RO effectuated the award of a 70 percent rating for the Veteran's PTSD effective November 24, 2008, and it also assigned a TDIU effective November 24, 2008. That is the date that the Veteran first met the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a). The Veteran contends that the date of his TDIU award should be April 24, 2007, which is the date of his claim for service connection for PTSD, and the date that he was found to be unemployable per a private medical opinion in October 2015. As noted, the Veteran does not meet the schedular criteria for a TDIU for the period prior to November 24, 2008, that is, for the period from April 24, 2007, to November 24, 2008. This is in consideration of his service-connected disabilities for this period which include PTSD rated at 30 percent, left knee disability with anterior cruciate ligament tear rated at 10 percent, tinnitus rated at 10 percent, left knee osteoarthritis rated at 10 percent and 0 percent ratings for residual, foreign body, right eye, appendectomy scar, malaria, and hearing loss. The combined rating for this period is 50 percent. Thus, consideration of a TDIU prior to November 24, 2008 is on an extraschedular basis under 38 C.F.R. § 4.16(b). VA outpatient treatment records show that the Veteran began attending weekly PTSD support group sessions in May 2007. He also attended individual psychotherapy sessions. The group therapy records show that he had anger problems. This is consistent with the Veteran's spouse's statement in May 2007 that he had severe mood swings and irritability. Also, an October 2008 VA psychiatric consult record shows that he continued to have intrusive thoughts if he did not stay busy and that he had volunteered at the VA medical clinic three days a week. He reportedly cared for his mother in Florida six months a year and he lived up north six months, where he was involved in a VA PTSD program. The VA outpatient records in Florida show that the Veteran asked if he could join the PTSD group there. Records from the Social Security Administration show that the Veteran had not worked or performed substantial gainful employment since June 2006 due to recurrent severe spinal stenosis with bilateral diffuse lower extremity numbness and back pain status post laminectomy and diabetes mellitus. In specific regard to the Veteran's service-connected PTSD, there is evidence for and against his ability to secure and follow a substantially gainful occupation for the entire period on appeal prior to November 24, 2008, in view of his educational and occupational experience. The favorable evidence includes the October 2015 private medical report referenced above from Dr. Tripi who opined that the Veteran's PTSD symptoms alone rendered him "individually unemployable" from April 24, 2007, to "present". She based her opinion on her review of the Veteran's claims file and on several in-person and telephone evaluations. She reported that the Veteran's symptoms included frequent bouts of irritability and outbursts of anger, and she observed that his mind wandered and he had difficulty concentrating. She further reported that he had difficulty falling and staying asleep, and he became extremely upset around people, places and events that reminded him of the military. There is also the favorable opinion of the active Acting Veterans Service Center Manager in February 2021 who recommended that TDIU benefits be granted to the Veteran on an extra-schedular basis effective April 24, 2007. The acting manager noted that April 24, 2007, is the date that the Veteran was granted service connection for his PTSD, and she outlined the Veteran's medical and employment history, noting that he had not been gainfully employed in 2007 and 2008. In arriving at that determination, the manager took note of Dr. Tripi's October 2015 report, as well as findings from the Veteran's initial PTSD examination in January 2009, which she said showed complications with employment due to his PTSD symptoms. Moreover, there is a March 2009 report from a VA readjustment counseling therapist who reported that despite the Veteran's ongoing individual therapy and prescribed psychotropic medication for the management of his PTSD symptoms, he had not demonstrated any noticeable reduction in the frequency or intensity of his PTSD, and that his chronic family problems exacerbated his PTSD symptoms and vice versa. Although that evidence is dated after November 24, 2008, it is pertinent to the extent that it pertains to the period prior to November 24, 2008. In contrast, there is the February 2021 opinion of the Executive Director, Compensation Service, who concluded that the preponderance of the evidence does not show that the Veteran's service-connected condition prohibited him from obtaining or maintaining gainful employment prior to April 24, 2007. She said that the medical evidence showed that his PTSD caused moderate disturbances with reliability and productivity, that his moods were reported as being frequently depressed and irritable, and that there was reduced reliability and productivity due to PTSD symptoms. Notably, she did not include a discussion of the Veteran's pertinent medical history, including Dr. Tripi's October 2015 favorable medical opinion. At the very least, the Board finds that the evidence is in relative equipoise as to whether the Veteran's service-connected disabilities, namely his PTSD, has prevented him from pursuing substantially gainful employment for the entire appeal period prior to November 24, 2008, that is from April 24, 2007, to November 24, 2008. Accordingly, as the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to a TDIU for beginning April 24, 2007, is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Shawkey, Anne M. 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.