Citation Nr: 21030608 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 17-62 191A DATE: May 19, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected PTSD (TDIU) is granted effective July 19, 2010, subject to the law and regulations governing the payment of monetary benefits is granted. FINDING OF FACT Throughout the rating period on appeal from July 19, 2010, the most probative evidence of record reflects that it is at least as likely as not that the Veteran's service-connected PTSD precluded him from maintaining substantially gainful employment consistent with his educational and occupational background. CONCLUSION OF LAW The criteria for a TDIU have been met for the period on appeal from July 19, 2010. 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 had active service from February 1970 to October 1971. This matter come before the Board of Veterans' Appeals (Board) on appeal from a July 2016 rating decision of the Department of Veterans Affairs (VA). The Board observes that the Veteran's representative did not submit a timely VA Form 9, substantive appeal, as required by applicable regulations. Rather, an informal substantive appeal was received in December 2017. In this regard, effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form. See 79 Fed. Reg. 57,660 (Sept. 25, 2014), 38 C.F.R. § 20.202. However, because the Agency of Original Jurisdiction (AOJ) treated the informal substantive appeal as timely, the Board will accept jurisdiction. See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). Further, entitlement to a TDIU has been raised, including in a March 2016 application for TDIU, as part and parcel of the Veteran's disagreement with the initial rating assigned for his posttraumatic stress disorder (PTSD), for which service connection was established effective July 19, 2010. Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, the period for consideration on this appeal for a TDIU is from July 19, 2010. 38 C.F.R. § 3.400. In July 2019, this case was initially before the Board. In July 2019, the Board denied entitlement to an initial evaluation in excess of 50 percent for PTSD and entitlement to a TDIU. The Veteran appealed the Board's July 2019 denial of these claims to the United States Court of Appeals for Veterans Claims (Court). In an Order dated in April 2020, the Court granted an April 2020 Joint Motion for Remand (JMR) of the parties (the Secretary of VA and the Veteran), vacated the Board's July 2019 decision, and remanded the case to the Board for readjudication consistent with the JMR. Following the April 2020 JMR, in March 2021 the Board denied entitlement to an initial evaluation in excess of 50 percent for posttraumatic PTSD and remanded entitlement to a TDIU. The issue of entitlement to a TDIU now returns for appellate review. In May 3, 2021 correspondence, the Veteran's representative requested that he be provided with written notification when the Board received this case and that the adjudication be stayed at least 90 days from the date this notification was provided. May 7, 2021 VA correspondence notified the Veteran and his representative that the appeal had been returned to the Board and had resumed its place on the docket. The Board acknowledges the Veteran's requested extension has not been granted. Nonetheless, as entitlement to a TDIU is granted below, to the extent allowed as a matter of law, allowance of an extension of time is not warranted as it would serve no useful purpose. Here, the underlying TDIU claim is part and parcel of the Veteran's claim for an increased initial rating his PTSD, for which service connection was established effective July 19, 2010. Thus, the earliest possible effective date for the Veteran's TDIU claim is the date of his underlying claim. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Accordingly, the earliest possible effective date for the assignment of a TDIU is July 19, 2010 and entitlement to a TDIU, from July 19, 2010, is granted in the decision below. Harper v. Brown, 10 Vet. App. 125 (1997). 1. Entitlement to a TDIU The Veteran contends entitlement to a TDIU is warranted. Specifically, in an August 2016 notice of disagreement and as well as in June 2019 and November 2020 argument, the Veteran's representative argued entitlement to a TDIU was warranted from July 19, 2010 onward. Additionally, in a June 2019 statement, the Veteran reported that he worked for 28 years (plus two military credit years) with the U.S. government and that he struggled in dealing with some supervisors and fellow employees. He described he had a bad temper and anger while on the job and that sometimes he fell asleep in the job because he did not sleep well due to nightmares. He further described that, when he retired in 2007, his PTSD symptoms worsened, and that he tried to find a part-time job but quit this endeavor due to his bad mood and anger. A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.16. Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 4.16, 4.19. To meet the schedular requirements, there must be one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16 (a). If a veteran fails to meet the threshold minimum percentage standards enunciated in 38 C.F.R. § 4.16 (a), rating boards should refer to the Director, Compensation Service, for extraschedular consideration all cases where the veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16 (b). The United States Court of Appeals for Veterans Claims (Court) interpreted "unable to secure and follow a substantially gainful occupation" under 38 C.F.R. § 4.16 (b) and also noted 38 C.F.R. § 4.16 uses the phrases "substantially gainful employment" and "substantially gainful occupation" and found these phrases were synonymous. Ray v. Wilkie, 31 Vet. App. 58, 62 (2019) (footnote 4, citing Ortiz-Valles v. McDonald, 28 Vet. App. 65, 70 (2016)). The Board notes that 38 C.F.R. § 4.16 (a) requires a Veteran to be unable to secure or follow a substantially gainful occupation, rather than secure and follow it, but finds the Court's analysis in Ray is applicable to the Board's analysis here. Thus, the phrase unable to secure or follow a substantially gainful occupation contains both economic and noneconomic components. Id. 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. Id. The non-economic component includes consideration of the veteran's history, education, skill, and training, consideration of the veteran's physical ability with possible relevant factors including the veteran's limitations as to lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as audio and visual limitations, and consideration of the veteran's mental ability, including his limitations as to memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Id. However, these factors are not a checklist, but, rather, discussion of these factors is only necessary when they are raised by the evidence. Id. As noted above, entitlement to TDIU was raised in relation to the claim for a higher initial rating for the Veteran's service-connected PTSD. Rice, 22 Vet. App. at 453-54. Service connection for PTSD was awarded effective from July 19, 2010. Thus, the rating period for consideration on appeal is from July 19, 2010. Service connection has been established for PTSD, rated as 50 percent disabling effective July 19, 2010; diabetes mellitus, type II, rated 20 percent disabling effective July 30, 2019; gastroesophageal reflux disease with ulcerative colitis, rated as 10 percent disabling from July 30, 2019; history of malaria, rated noncompensable from May 5, 1982; shell fragment wound, scar in the back, rated noncompensable from May 5, 1982; chronic sinusitis, rated noncompensable from July 30, 2019; and allergic rhinitis, rated noncompensable from July 30, 2019. During the pendency of the claim for TDIU, the Veteran's combined disability rating was 50 percent from July 19, 2010 and 60 percent from July 30, 2019. Thus, as indicated above, during the appeal period beginning on July 19, 2010, while the Veteran did meet the requirement that at least one disability must be rated at 40 percent, as PTSD was rated as 50 percent, he did not have sufficient additional disability for a combined rating to 70 percent or more, pursuant to 38 C.F.R. § 4.16 (a). As the Veteran does not meet the above-noted percentage requirements, entitlement to a TDIU cannot be assigned under 38 C.F.R. § 4.16 (a). However, entitlement to a TDIU may be considered on an extraschedular basis under 38 C.F.R. § 4.16 (b). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Entitlement to an extraschedular TDIU may be referred in the first instance for approval by the Director of VA Compensation Service. In this case, an opinion was obtained from the Director, and associated with the record in March 2021. Consequently, the Board may now consider the TDIU issue without prejudice to the Veteran. After careful consideration, the most probative evidence of record demonstrates the Veteran was prevented from securing or following a substantially gainful occupation due to his service-connected disabilities throughout the appeal period. In regard to the Veteran's employment history, in VA Forms 21-8940, Veteran's Application for Increased Compensation Based on Individual Unemployability, received by VA in March 2016 and August 2016, the Veteran reported he last worked full-time in August 2007 in accounting and that he became too disabled to work in August 2007. Additionally, an August 2009 VA treatment record noted, in part, that the Veteran worked at the Internal Revenue Service (IRS) as auditor for 28 years and two more years considered for retirement for military service. Similarly, a March 2011 VA examiner noted the Veteran retired as an IRS auditor in 2007. In terms of the Veteran's education, in the VA Forms 21-8940, received by VA in March 2016 and August 2016, the Veteran reported four years of college education. Also, July 2009 and August 2009 VA treatment records also noted the Veteran had a bachelor's degree in accounting. As discussed above, throughout the appeal, the Veteran was service-connected for PTSD, diabetes mellitus, type II, gastroesophageal reflux disease with ulcerative colitis, a history of malaria, shell fragment wound, scar in the back, chronic sinusitis, and allergic rhinitis. In terms of the Veteran's service-connected PTSD, a August 2009 VA treatment record, dated proximate to the appeal period, documented during the Veteran's working years, he noticed he was irritable with supervisors, though had no disciplinary actions against him. A March 2011 VA examiner did not endorse a diagnosis of PTSD but instead diagnosed a mood disorder due to a medical condition. The March 2011 VA examiner further found the Veteran's psychiatric symptoms were controlled by continuous medication. Mittleider v. West, 11 Vet. App. 181, 182 (1998). An August 2011 private physician noted, in part, that as to the Veteran's PTSD, there was evidence of emotional impairment that did not enable him to perform any job nor behave appropriately with his family and social nucleus. A July 2016 VA examiner found the Veteran's PTSD was productive of symptomology which resulted in occupational and social impairment with reduced reliability and productivity. However, the July 2016 VA examiner also found the Veteran had symptoms of depressed mood, anxiety, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, disturbances of motivation and mood, and difficulty in adapting to stressful circumstances, including work or a worklike setting. Also, an August 2014 private examiner found, in part, that the Veteran's symptoms of PTSD had become so severe as to force him to leave full-time employment in 2007, although he had wished to continue working. In March 2019, the same private examiner discussed the Veteran's PTSD and found, in part, by 2007 the Veteran was no longer safe or functional in an occupational setting and he had precipitously deteriorated and continued to do so through the current day. Most recently, in an October 2020 opinion, the same private examiner found, in part, that since the Veteran was forced to stop working, he had become more socially isolated, specifically to protect himself and avoid potential triggers. In October 2020, the private examiner opined that since at least 2007, the Veteran been completely psychiatrically disabled and incapable of working. In terms of the Veteran's service-connected diabetes mellitus, type II, an August 2019 VA examiner found the Veteran's diabetes mellitus did not impact his ability to work. The August 2019 VA examiner also found the Veteran's diabetes mellitus, type II, was managed by restricted diet and prescribed oral hypoglycemic agents. A November 2019 VA treatment record noted, in part, that given the Veteran's last testing it was unclear if he needed an oral agent as replacement. In terms of the Veteran's service-connected gastroesophageal reflux disease with ulcerative colitis, a November 2019 VA examiner found the Veteran's esophageal condition, diagnosed as gastroesophageal reflux disease, did not impact his ability to work. However, the November 2019 VA examiner documented as to the Veteran's gastroesophageal reflux disease, he was on proton pump inhibitors which helped some but he still had breakthrough symptoms of reflux and heartburn. Further, an November 2019 VA examiner found the Veteran's intestinal condition, diagnosed as ulcerative colitis, impacted his ability to work as his episodes of diarrhea and abdominal cramping could lead to disruption of his work. Also, an August 2019 VA treatment record, dated proximate to the grant of service connection for this disability, noted, in part, the Veteran was evaluated for recurrent diarrhea. In terms of the Veteran's history of malaria, there is no evidence of any specific residual symptomology. In terms of the Veteran's shell fragment wound, scar in the back, a March 2016 VA treatment record documented that the Veteran reported he still had a metallic fragment in his back. Also, December 2017, June 2018, December 2018, April 2019, August 2019 VA treatments records documented, in part, that a chest x-ray documented a metallic fragment on the right appeared unchanged. In terms of the Veteran's chronic sinusitis and allergic rhinitis, an August 2019 VA examiner found the Veteran's sinus, nose, throat, larynx or pharynx condition, diagnosed as chronic sinusitis and allergic rhinitis, did not impact his or her ability to work, and also noted his sinusitis was currently asymptomatic. However, the August 2019 VA examiner also described current symptoms of coughing, post nasal drip, and congestion. In a March 2021 opinion, regarding entitlement to TDIU on an extraschedular basis, the Director of Compensation Service, found the evidence failed 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. Although the Board is precluded from initially assigning an extraschedular rating, there is no restriction on the Board's jurisdiction to review the denial of an extraschedular rating on appeal. Floyd v. Brown, 9 Vet. App. 88, 96-97 (1996); see also Anderson v. Shinseki, 22 Vet. App. 423 (2009). The Board concludes that the totality of the evidence of record is at least in equipoise, and with resolution of doubt in the Veteran's favor, is sufficient to establish that the Veteran is unable to follow a substantially gainful occupation consistent with his education and occupational history due to his service-connected PTSD for the appeal period from July 19, 2010. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Specifically, the evidence for the period from July 19, 2010 generally reflects the Veteran's service-connected PTSD resulted in his being incapable of functioning in an occupational setting. In this regard, as above discussed, a private examiner, in opinions dated in August 2014, March 2019, and October 2020, concluded the Veteran had been unable to follow a substantially gainful occupation due his PTSD since 2007. Additionally, the record reflects the Veteran's gastroesophageal reflux disease with ulcerative colitis resulted in episodes of diarrhea and abdominal cramping which could lead to disruption of work. Accordingly, all reasonable doubt is resolved in the Veteran's favor, and entitlement to a TDIU is warranted for the rating period on appeal from July 19, 2010. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Espinoza, 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.