Citation Nr: 21029888 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 12-24 439 DATE: May 17, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) for the period beginning April 21, 2010, is granted. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) on an extraschedular basis for the period prior to April 21, 2010, is denied. REMANDED Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. The evidence is at least in equipoise as to whether the Veteran's service-connected disabilities preclude gainful employment consistent with his education and occupational experience from the period beginning April 21, 2010. 2. The preponderance of the evidence is against a finding that the Veteran was unable to secure or follow any form of substantially gainful employment due to his service-connected disabilities prior to April 21, 2010. CONCLUSIONS OF LAW 1. The criteria for a TDIU during the period beginning April 21, 2010, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, 4.19. 2. The criteria for an extraschedular TDIU during the period prior to April 21, 2010, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1966 to May 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran presented testimony at a Board hearing in August 2016. A transcript of the hearing is associated with the Veteran's claims folder. This case was previously before the Board in December 2016, on which occasion the claims were remanded. In the Board's December 2016 decision, claims of entitlement to increased ratings for residuals of a gunshot wound to the right shoulder and degenerative joint disease of the right shoulder were remanded for the issuance of a statement of the case (SOC). Manlincon v. West, 12 Vet. App. 238 (1999). In remanding the case, the Board indicated that these claims were not to be certified or return to the Board unless the Veteran submitted a timely substantive appeal. The RO proffered a SOC in November 2019. The Veteran did not file a substantive appeal. As such, the Board does not have jurisdiction to consider the issues of entitlement to increased ratings for residuals of a gunshot wound to the right shoulder and degenerative joint disease of the right shoulder 1. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) for the period beginning April 21, 2010. Based on a review of the record, the Board finds that the Veteran's service-connected disabilities precluded substantially gainful employment for the period prior to April 21, 2010. The Board notes that the Veteran was granted a schedular TDIU effective June 7, 2010. A TDIU may be granted where the schedular rating is less than 100 percent if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16(a), 4.19, 4.25. Generally, to be eligible for a TDIU, a schedular percentage threshold must be met. If there is only one service-connected disability for TDIU purposes, it must be rated at least 60 percent disabling. If there are two or more service-connected disabilities, there must be at least one disability rated at 40 percent or more and sufficient additional disabilities to bring the combined overall rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In determining employability for VA purposes, consideration is given to the level of education, special training, and work experience, but not to age or non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16(a), 4.19; see also Faust v. West, 13 Vet. App. 342 (2000). The question is whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). The Veteran does not have to be 100 percent unemployable in order to be entitled to a TDIU. Roberson v. Principi, 251 F. 3d 1378, 1385 (Fed. Cir. 2001). The Veteran was last employed in May 2003 as a tractor trailer operator for the U.S. Post Office. (7/22/2016, VA 21-8940, p. 1). He reported previous employment as a lineman and bus driver. For the period of April 21, 2010, to June 7, 2010, service connection was in effect for the following disabilities: PTSD (50 percent), residuals of a gunshot wound of the right shoulder (20 percent), tinnitus (10 percent), and bilateral hearing loss (zero percent). His combined rating was 60 percent from April 21, 2010. The Board finds that the Veteran meets the threshold criteria for a TDIU for the period beginning April 21, 2010, as set forth under 38 C.F.R. § 4.16(a)(2), which states that disabilities resulting from common etiology or a single accident will be considered as one disability for the purpose of determining whether the Veteran has a disability ratable at 60 percent or more. In this case, the Board finds that PTSD and residuals of a gunshot wound of the right shoulder resulted from the common etiology of combat service in Vietnam. Therefore, in accordance with 38 C.F.R. § 4.16(a)(2), the Board finds that the Veteran meets the threshold criteria for the period beginning April 21, 2010. The Board must now determine if the aforementioned service-connected disabilities precluded substantially gainful employment during the period beginning April 21, 2010. The Veteran did not undergo VA examinations for his service-connected disabilities between April 21, 2010, and June 7, 2010. However, he underwent VA examinations in October 2010. While these examinations occurred outside the period on appeal, the Board finds that given that they were conducted within three months of the period being considered the examinations would reflect the severity of the Veteran's service-connected disabilities during the period being considered. In October 2010 the Veteran underwent a VA mental health examination. He endorsed symptoms that would interfere with his ability to secure or follow a substantially gainful occupation, including avoidance of crowds, exaggerated startle response, and irritability. (10/27/2010, VA Examination, p. 18). The Veteran's medical records note that he was unable to tolerate people being "immediately behind him," and that he could not work with Asian people. He reported symptoms including hypervigilance, exaggerated startle reflex, irritability, and anger. (6/14/2010, Medical Treatment Records, p. 3). The Veteran also underwent a VA right shoulder examination in October 2010. During the examination, the Veteran reported constant throbbing ache with an intensity of 3-4 out of 10 and daily flare-ups of pain lasting 15-20 minutes with an intensity of 7 out of 10. He further reported weakness, stiffness, instability, fatigability, and lack of endurance. Objective examination revealed that approximately 5 to 10 percent of the Veteran's deltoid muscle was missing. The examiner further noted reduced range of motion of the shoulder. (10/27/2010, VA Examination, p. 1, 3). Based on the aforementioned, the evidence is deemed to be at least in equipoise as to whether the Veteran was unable to secure or follow a substantially gainful occupation due to his service-connected disabilities for the period beginning April 21, 2010. As noted in the Board's December 2016 opinion, the Veteran's records indicate occupational experience in fields reliant on physical labor and commercial driving, which the Veteran could no longer perform due to his service-connected right shoulder disability. He has not reported, and the record does not indicate, that the Veteran has training or experience in modern workplace technology. Moreover, the Veteran's PTSD reduced his ability to work effectively with coworkers or the general public. Accordingly, a TDIU is warranted beginning April 21, 2010. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) on an extraschedular basis for the period prior to April 21, 2010. Prior to April 21, 2010, the Veteran was service connected for residuals of a gunshot wound of the right shoulder (20 percent) and bilateral hearing loss (zero percent). His combined rating was 20 percent from May 10, 1969. The percentage ratings for the service-connected disabilities did not meet the minimum combined rating criteria under 38 C.F.R. § 4.16(a) for eligibility for TDIU prior to April 21, 2010. An extraschedular TDIU may be assigned in exceptional cases to a veteran who is found to be unemployable because of service-connected disabilities but does not meet the percentage standards set forth in § 4.16(a); in such cases, the rating authority should refer the matter to the Director of the Compensation Service for extraschedular TDIU consideration. 38 C.F.R. § 4.16(b). In November 2020 the Director of Compensation Services (Director) provided an advisory opinion on the Veteran's claim for extraschedular TDIU, wherein the Director determined that "the overall evidence fails to support the contention that any of the [Veteran's] service-connected disabilities or a combination of the effects of those disabilities support an exceptional situation that prevented gainful employment prior to June 7, 2010." (11/18/2020, VA Memo, p. 2). Based on a review of the evidence, the Board finds that the Veteran was not prevented from securing or following a substantially gainful occupation as a result of service-connected disabilities prior to April 21, 2010. During this period, the Veteran's service-connected right shoulder disability would have interfered with his ability to perform physical labor. However, given that the Veteran was not service connected for PTSD during the period currently in question and given that non-service-connected disabilities cannot be considered in determining entitlement to a TDIU, the Board finds that the Veteran's service-connected disabilities did not prevent him from securing employment in fields dealing with the general public, such as a customer service position. In this regard, as noted in the previous section, the Veteran's PTSD (for which he was granted service connection for effective April 21, 2010) symptoms caused issues with avoidance, anger, and irritation, which prevented him from working with the general public. For these reasons, the Board finds that the weight of the evidence demonstrates that the criteria for TDIU were not met prior to April 21, 2010. As the preponderance of the evidence is against this claim, the benefit of the doubt rule is not for application, and the Board must deny the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is remanded. Upon review of the claims file, the Board has determined that further development is necessary before the Veteran's claims can be adjudicated. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Board notes that the Veteran was last afforded an examination to ascertain the current severity and manifestations of his service-connected PTSD in October 2016. VA has a duty to obtain contemporaneous examinations to ascertain the current severity of his disabilities. See Caffrey v. Brown, 6 Vet. App. 377 (1994). Given the length of time since the Veteran's last examination, and the absence of other contemporary records from which to determine the present level of severity, the Board finds that he should be provided an opportunity to report for an VA examination to ascertain the current severity and manifestations of PTSD. The matters are REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records for the Veteran's disabilities from September 2020 to the present. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected PTSD. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Glenn, Associate 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.