Citation Nr: 21028402 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 15-23 292 DATE: May 11, 2021 ORDER Effective October 10, 2015, a finding of total disability based on individual unemployability (TDIU) is granted. FINDING OF FACT On October 10, 2015, the day following the Veteran's last date of employment, the Veteran's service-connected PTSD rendered him unable to secure and follow a substantially gainful occupation. CONCLUSION OF LAW Effective October 10, 2015, the criteria for entitlement to TDIU on an extraschedular basis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.15, 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Air Force from December 1967 to June 1974. This matter comes before the Board of Veterans' Appeals (Board) from an April 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the Veteran testified before the undersigned at a video conference hearing. A transcript of the hearing is associated with the record. 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 Schedule for Rating Disabilities 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 rating 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 he 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. 38 C.F.R. § 4.16(a). If not, all veterans who shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). If 4.16(a) is not met, the case will be referred to the Director of the Compensation Service, for extra-schedular consideration of all veterans who are unemployable by reason of service-connected disabilities. Id. From June 19, 2013, to February 21, 2016, the Veteran was service connected for PTSD with anxiety and depression, rated at 50 percent disabling, and shingles rated at 0 percent disabling. Because the Veteran is not in receipt of the minimum schedular ratings required for the award of a TDIU under 38 C.F.R. § 4.16(a) prior to February 22, 2016, the Board is to consider whether 38 C.F.R. § 4.16(b) is for application. Fanning v. Brown, 4 Vet. App. 225, 229 (1993). As discussed further below, the claim has already been referred to the Director of Compensation Service for extra-schedular consideration. Though VA is required to obtain the Director's decision before awarding extra-schedular TDIU benefits in the first instance, the Board is not bound by the Director's decision or otherwise limited in its scope of 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 central inquiry is whether the Veteran's service-connected disabilities render him unemployable. In this regard, the question is "whether [a] veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to a veteran's education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). In his application for TDIU, the Veteran stated that he last worked on October 1, 2015, as a risk manager at a hospital. He stated that the most he earned in one year was $100,000. In a VA Form 21-4192, his prior employer, R. Community Hospital, stated that the Veteran's ending date of employment was October 9, 2015, and that the Veteran worked as a safety and risk analyst. The amount earned during the 12 months preceding the last date of employment was $135,381.37. The Veteran retired from that job. Private treatment records show history of depression and assessments of anxiety. A July 2013 private treatment record shows that the Veteran took Ativan as needed, but used it sparingly. In March 2014, the Veteran was provided a VA examination for PTSD. The examiner indicated that the Veteran had occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or, symptoms controlled by medication. The Veteran stated that he had been married for 40 years, but reported that he and his wife were currently going through a divorce. The Veteran reported that they were still good friends and the Veteran stated that he was extremely close to his children. Concerning his occupation, the Veteran reported that he worked as a banker for 20 years and had also worked in the hospital setting for 20 years. He stated that he currently worked full-time as a risk manager at the hospital. The Veteran reported that he returned to school and obtained his BA in business in 2007. The Veteran denied a history of inpatient hospitalizations and suicide attempts. He denied endorsing passive or active thoughts of suicide. He reported that he had thought about wanting things to change and wishing things were different, but denied past suicidal ideations. He denied current suicidal and homicidal ideations. Concerning symptoms, the Veteran had depressed mood; anxiety; suspiciousness; panic attacks that occurred more than twice a week; chronic sleep impairment; mild memory loss; and difficulty in establishing and maintaining effective work and social relationships. On examination, the Veteran was dressed appropriately, and speech was within normal limits. Thought processes were logical, linear, and goal directed. Thought content was congruent with questions asked. There was no evidence of delusional thinking. However, subsequent to that 2014 VA examination, VA treatment records show that the Veteran reported that his PTSD symptoms had worsened and were interfering with his work. A September 2015 VA treatment record reveals that the Veteran stated that his anxiety was getting worse and interfering with his employment. He stated that he intended to retire after October 2015. A September 2015 PTSD screening indicated that the Veteran reported avoidance of activities, loss of interest in activities, irritability with outbursts, and difficulty concentrating. A November 2015 VA treatment record shows that the Veteran reported high levels of anxiety that interfered with his daily life, meetings, and riding in an elevator that caused him to opt for early retirement. The Veteran submitted lay statements from former co-workers attesting to his severe PTSD symptoms at work. MB stated that the Veteran had to excuse himself from meetings or while touring the facility with regulators for hospital accreditation due to his anxiety and stress. The Veteran was also apprehensive about riding in an elevator and experienced anger and irritability. MB explained that the Veteran had difficulty adapting to stressful circumstances and witnessed the Veteran going through a change including gagging and choking. MB believed that the Veteran's episodes affected his productivity and caused early retirement. JD also noted the Veteran's panic attacks, anxiety, and stress. He stated that he witnessed the Veteran excuse himself from meetings or tours and that he had episodes when he would twitch and gag and choke. CS echoed the above noting the Veteran's panic attacks, stress, and anxiety, and that his symptoms affected work habits causing early retirement. TS stated that he witnessed the Veteran's explosive nature on several occasions and acting out without warning. He noted that the Veteran had panic attacks, anxiety, and stress and would leave meetings due to his anxiety. TS also stated that the Veteran's marriage was strained and that his irrational behaviors ultimately led to divorce. He stated that the events affected the Veteran's work habits, causing him to be demoted and early retirement. In a January 2021 advisory opinion, the Director of Compensation Service found that extraschedular TDIU was not warranted prior to February 22, 2016. The Director noted consideration of the lay statements, but assigned greater weight to the objective medical evidence of record. In this case, the RO already found that the Veteran was unable to secure and follow a substantially gainful occupation as a result of his PTSD, and the Board previously granted an earlier effective date of February 22, 2016, to that award the date that he first met the schedular requirements for TDIU. The question remaining is whether the Veteran is entitled to TDIU on an extraschedular basis prior to February 22, 2016. Unlike the criteria for an extra-schedular rating under 38 C.F.R. § 3.321, the grant of an extra-schedular rating for a TDIU under 38 C.F.R. § 4.16(b) is based on a subjective standard that seeks to determine if a particular Veteran is precluded from employment based on his service-connected disabilities. Considering the above, the Board finds that the Veteran's service-connected PTSD precluded him from securing and following substantially gainful employment beginning October 10, 2015, the day after his last date of employment. An effective date earlier October 10, 2015, would not be appropriate given that the Veteran was working full-time. The Board notes that the Veteran indicated on his application that his last day of work was October 1, 2015, but the Board assigns greater probative value to the employer's statement who provided detailed information regarding the Veteran's employment, including his exact salary for the previous year, and stated that the Veteran's last day of employment was October 9, 2015, and that he was last paid on October 9, 2015. Though the Veteran does not meet the schedular requirements for TDIU, the Board finds the medical evidence demonstrating the debilitating limitations of the Veteran's PTSD coupled with the lay statements from the Veteran's co-workers and wife very persuasive of the Veteran's limitations and how those translate to work-related tasks. The Board finds that the functional limitations associated with his PTSD would pose significant barriers to ability to achieve and sustain gainful employment. See Ray v. Wilkie, 31 Vet. App. 58, 72 (2019) (holding that the phrase "unable to secure and follow a substantially gainful occupation" in § 4.16 has economic and noneconomic components, the latter of which focuses on the individual veteran's ability to perform the physical and mental acts necessary for such an occupation). Specifically, the Veteran's severe anxiety, phobias, choking and gagging movements, episodes of anger, and abruptly leaving meetings, would render him unable to secure and follow a substantially gainful occupation. Resolving reasonable doubt in the Veteran's favor, TDIU on an extraschedular basis is therefore warranted effective October 10, 2015. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Seay, 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.