Citation Nr: 21030332 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 09-50 488 DATE: May 18, 2021 ORDER From November 9, 2006 to January 22, 2013, an extraschedular total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT FINDING OF FACT From November 9, 2006 to January 22, 2013, the Veteran was prevented from securing and following substantially gainful employment as a result of the combined effects of his service-connected disabilities. CONCLUSION OF LAW From November 9, 2006 to January 22, 2013, the criteria for entitlement to a TDIU on an extraschedular basis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1968 to June 1971. The case is on appeal from a February 2008 rating decision. In a December 2020 decision, the Board denied service connection for hepatitis A and remanded the claim on appeal for additional development. A TDIU prior to January 23, 2013. Legal Criteria Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Marginal employment shall not be considered substantially gainful employment. Id. If the percentage requirements of 38 C.F.R. § 4.16(a) are not met, then a TDIU may still be granted on an extraschedular basis in cases when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b). However, the Board cannot grant an award of a TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b) in the first instance because that regulation requires that the RO first submit the claim to the Director of the Compensation Service (Director) for extraschedular consideration. See Wages v. McDonald, 27 Vet. App. 233 (2015). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: The veteran's history, education, skill, and training; Whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019) (citing 20 C.F.R. § 404.1567). Analysis The Veteran filed service-connection claims for posttraumatic stress disorder and diabetes on November 9, 2006. During the pendency of the claims and in appealing the assigned disability ratings, the Veteran claimed a TDIU due to these conditions in October 2007. In a July 2020 rating decision, the RO granted a TDIU effective January 23, 2013. The TDIU claim remains on appeal for the period prior to January 23, 2013. In the October 2007 TDIU claim form, the Veteran reported working as a machinist and tool maker from 1982 until 2004 and being unable to work since March 2004. He also reported completing 3 years of trade school to become a machinist and having no additional education. In an October 2007 correspondence, the Veteran reported being hospitalized several times for suicide attempts and being unable to drive or work due to panic attacks and medication used to treat psychiatric symptoms. In an October 2008 notice of disagreement (NOD), he reported being unable to sleep and experiencing intense flashbacks due to posttraumatic stress disorder (PTSD). He also reported that his diabetes results in periodic elevation of blood sugar with impairment of function and limitation of activities even with medication. From November 9, 2006 to January 22, 2013, the Veteran was service-connected for PTSD, rated as 50 percent disabling, and diabetes mellitus, type II, rated as 20 percent disabling. In addition, effective July 27, 2012, he was service-connected for right lower extremity neuropathy, rated as 10 percent disabling, and left lower extremity neuropathy, rated as noncompensably disabling. The file includes a June 1999 report from a psychiatrist in regard to the Veteran taking extended leave from work due to psychiatric symptoms. The psychiatrist reported that the Veteran experiences recurrent major depressive illness and that he was in a state of severe clinical depression. The Veteran was afforded a VA diabetes examination in December 2007. The Veteran reported experiencing the onset of lower extremity symptoms in 2006, including a burning sensation in his feet and intermittent swelling of the legs and feet. In October 2008, the Veteran submitted an April 2007 letter from a private psychiatrist. The psychiatrist reported treating the Veteran since August 2006. She also reported the presence of PTSD symptoms of depression and insomnia. She further reported that he fatigues easily due to diabetes. She concluded that the Veteran's PTSD and diabetes are too disabling for him to work. In January 2016, the Veteran's Social Security Administration (SSA) records were associated with the file. The Veteran completed a self-assessment in August 2008. He reported experiencing panic and anxiety attacks, rarely showering or getting dressed, and being unable to drive. His wife also completed an assessment of the Veteran's functional ability in August 2008. She reported that he experiences severe panic attacks whenever he leaves the house, rarely bathes or gets dressed, and is unable to drive due to becoming confused and getting lost. She also reported that he avoids communicating with anyone. The Veteran was evaluated by an SSA examiner in regard to his functional capacity. The examiner reported that the Veteran experiences moderate to marked impairment in many areas including understanding and carrying out detailed instructions, sustaining routine, interacting with coworkers and clients, maintaining concentration, and completing activities of daily living. The examiner noted that the Veteran experiences severe panic attacks, does not drive, has problems with concentration and memory, and is unable to handle stress. The SSA found that the Veteran is unable to work due to psychiatric symptoms. The December 2020 Board decision remanded the claim for consideration of a TDIU on an extraschedular basis for the period on appeal prior to January 23, 2013. Later in December 2020, a VA service center manager wrote a memorandum recommending granting a TDIU on an extraschedular basis from November 9, 2006 to January 22, 2013. The manager explained that the evidence shows that the Veteran's service-connected PTSD and diabetes result in a moderate degree of limitation for restriction of activities of daily living, a marked degree of limitation for difficulties in maintaining social functioning, and a moderate degree of limitation for difficulties in maintaining concentration, persistence, or pace. The manager. The manager also explained that the Veteran was a machinist at one employer for 22 years and that his employment and education history do not include any training which would warrant additional types of employment, to include sedentary employment. In January 2021, the Director found that a TDIU prior to January 23, 2013 is not warranted. The Board finds that the Veteran's service-connected PTSD and diabetes prevented all substantially gainful employment since November 9, 2006. In this regard, the Veteran was not working during this period and his medical records indicate he was struggling to continue working prior to leaving his last job in March 2004. In addition, the Veteran and his wife explained that he is intermittently prevented from work due to diabetes symptoms, regularly experiences severe panic attacks, and is unable to drive. In April 2007, the Veteran's treating psychiatrist found that that he is unable to work due to symptoms of PTSD and diabetes. Furthermore, the SSA examiner found that he experiences moderate to marked impairment in several areas including interacting with coworkers and clients, carrying out instructions, and maintaining concentration. To the extent that the Veteran was able to work sedentary jobs, he has no training or experience relevant to performing sedentary work and is unable to drive himself to work in order to maintain such employment. Resolving reasonable doubt in the Veteran's favor, he has been prevented from securing and following substantially gainful employment as a result of the combined effects of his service-connected disabilities since November 9, 2006. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Thus, an extraschedular TDIU is warranted prior to January 23, 2013. See 38 C.F.R. § 4.16(b); Wages, 27 Vet. App. at 233. The Board considers this a full grant of the benefit sought. S. Merrick Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Jimerfield 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.