Citation Nr: 21031395 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 14-13 008 DATE: May 21, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) on an extraschedular basis prior to October 22, 2010 is granted. Entitlement to a TDIU on a schedular basis on and after October 22, 2010 is granted. FINDINGS OF FACT 1. Prior to and following October 22, 2010, the Veteran's posttraumatic stress disorder (PTSD) and low back disorder prevented him from securing or following a substantially gainful occupation. 2. The Veteran met the criteria for a schedular TDIU under 38 C.F.R. § 4.16(a) on October 22, 2010. CONCLUSIONS OF LAW 1. The criteria for an extraschedular TDIU are met prior to October 22, 2010. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. 2. The criteria for a schedular TDIU are met on and after October 22, 2010. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Marine Corps from July 1968 to August 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In a January 2018 decision, the Board denied a rating in excess of 10 percent for a lumbar spine disorder and a TDIU. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a Joint Motion for Remand (JMR), the parties agreed to vacate the Board's decision with regard to both issues and remand the case to the Board for additional development. The matter was then remanded by the Board in June 2019. In November 2020, the Board denied entitlement to an evaluation higher than 10 percent for recurrent low back strain and remanded the issue of entitlement to a TDIU for development and referral to the Director of Compensation Service. The matter has again been returned for further appellate review. The claim is fully granted herein, therefore any issue with VA's duty to notify or assist, or to comply with the prior remand directives is moot. 1. Entitlement to a TDIU, to include on an extraschedular basis prior to October 22, 2010 and on a schedular basis on and after that date, is granted. The Veteran asserts he is unable to maintain gainful employment due to his service-connected disabilities. VA will grant TDIU when the evidence shows that a veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU is granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. 38 C.F.R. § 4.16(a). If there are two or more such 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). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the veteran's background including his employment and educational history. 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). Rather, the issue must be referred to the Director of Compensation Service for such assessment in the first instance. Kuppamala v. McDonald, 27 Vet. App. 447, 457 (2015). Thereafter, the Board has jurisdiction to review the entirety of the Director's decision denying or granting an extraschedular rating and is authorized to assign an extraschedular rating when appropriate. Id. For VA purposes, the term unemployability is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91, 57 Fed. Reg. 2,317 (Jan. 21, 1992). Consideration may be given to the 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). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. The ability to work sporadically or obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). Prior to June 10, 2013, service connection was in effect for PTSD and low back strain. On and after June 10, 2013, service connection was also in effect for bilateral hearing loss and tinnitus. Prior to October 22, 2010, PTSD was rated at 50 percent and the combined disability rating was 60 percent; thus, the Veteran did not meet the schedular requirements for a TDIU prior to October 22, 2010. On and after October 22, 2010, PTSD was rated at 70 percent and the combined disability rating was at least 70 percent. Thus, the Veteran met the schedular requirements for a TDIU on and after October 22, 2010. The preponderance of the evidence establishes the Veteran was unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities prior to and after October 22, 2010. The Veteran's occupational history is primarily in construction and physical labor. A July 1999 VA psychosocial history report documents the Veteran had 13 years of education and 16 months of technical training. His usual occupation was construction. April and May 2001 VA treatment notes report the Veteran worked many years doing construction, and last worked laying pipe until he was laid off. The Social Security Administration (SSA) documents report the Veteran previously worked in surveying, maintenance, and construction. Generally, the Veteran's work history has involved physical labor, and he does not have a history of less physical work. For the period on appeal, the Veteran is in receipt of both state and federal disability benefits. A March 2001 state disability form completed by a psychiatrist reports the Veteran was unable to return to his usual work due to PTSD and peripheral neuropathy. SSA records document the Veteran was awarded SSA disability benefits for affective (mood) and anxiety related disorders since April 2004. When he applied for SSA benefits, the Veteran reported that he was unable to work due to symptoms of PTSD, peripheral neuropathy, and his back condition. The evidence for the claim includes an October 2009 note, in which the Veteran's regular physician wrote that the Veteran had been and would be unable to engage in any gainful vocational activity because of a combination of significant physician and mental health issues. The physician explained the Veteran had chronic back pain and cervical spondylosis. He required opioid treatment for his pain management that further impaired his ability to function at a vocational level. His chronic PTSD, despite aggressive management, dominated his daily existence in a profound manner and precluded gainful activity. The Veteran also had severe peripheral neuropathy and degenerative knee disease that negatively affected his functional status. In May 2010, the Veteran wrote that he had significant low back pain, and that he was unable to stand or walk very long, bend down, or twist at the waist. In February 2011, the Veteran's VA physician documented the Veteran's medical problems generally prevented him from effectively holding down a full-time job since 2000. The physician generally referenced the Veteran's active problem list, which included low back pain, degenerative disc disease, hyperlipidemia, depressive disorder, right knee osteoarthritis, peripheral neuropathy, peptic ulcer disease, substance abuse in remission, and cervical spondylosis without myelopathy. In August 2013, the Veteran's VA psychiatrist wrote that the Veteran was unable to be employed due to his PTSD. The findings of the Veteran's treating physician and psychiatrist are highly persuasive as those providers were familiar with the Veteran's level of occupational functioning longitudinally and had been involved in his direct care for years. That evidence supports the conclusion that the Veteran was unemployable due to PTSD, and that his low back condition also contributed to his inability to perform in a physically strenuous job. The evidence against the claim includes VA examination reports and a memorandum from the Director of Compensation Service. A February 2011 VA examiner opined the Veteran was not unemployable solely due to his service-connected back condition. At that exam, the Veteran had described difficulty stooping, squatting, kneeling, bending, and with sitting or standing for long periods. A November 2011 VA examiner opined that the Veteran was "currently unable to function in occupational settings including general employment settings and sedentary employment; if still working he would have been able to function in loosely supervised settings in which little interaction with the public is required." The examiner then concluded the Veteran's PTSD alone did not render him unemployable despite noting significant symptoms, including impaired abstract thinking, difficulty adapting to a work-like setting, inability to establish and maintain effective relationships, impaired impulse control, neglect of personal appearance and hygiene, and intermittent ability to perform the activities of daily living. The Veteran was examined again in January 2020 with a July 2020 addendum opinion. On examination, the Veteran had back pain and limited flexion. The examiner found that the Veteran had worked until 2015 when he retired, and that he worked in a physical capacity until that time. Thus, the examiner concluded there was little to no functional impact from the back condition prior to then. The examiner indicated the Veteran was exaggerating his symptoms, and that the subjective reports did not comport with the objective findings. A February 2021 VA memorandum prepared for the Director of Compensation Service recommended the grant of an extraschedular TDIU prior to October 22, 2010. In a later February 2021 VA memorandum, however, the Director of Compensation Service concluded that the overall evidence did not show the Veteran was unemployable due to service-connected disabilities and was not entitled to an extraschedular TDIU. In support of that conclusion, the Director referenced the conclusions of the prior VA examiners. The VA opinions in this case are less probative that the Veteran's other treatment records. The February 2011 examiner noted the Veteran was taking opioid medication for pain but did not comment on any impairment in occupational functioning due to that medication. That omission is significant as the Veteran's treating physician wrote that the Veteran was vocationally impaired due to opioid medication prescribed for low back and cervical pain. Although the cervical spine condition is not service-connected, the medication was also prescribed for the low back condition. Thus, the impairment from that medication should be considered as part of the overall impairment due to the low back condition. Further, the examiner did not address whether the combination of the low back and psychiatric symptoms impaired the Veteran's employability. The November 2011 examiner wrote that the Veteran was unable to function in a general or sedentary employment setting due his psychiatric impairments, but could potentially work in an environment where certain concessions were made. That examiner's finding does not support the conclusion the Veteran was capable of functioning under the regular conditions of employment in light of the significant symptoms documented by the examiner. Regarding the 2020 VA exam and opinion, none of the other available evidence, including SSA or VA treatment records, indicates the Veteran worked in a physical capacity until 2015. That examiner did also not address any of the conflicting evidence of record. For these reasons, the VA examinations of record are not afforded probative weight. Further, the Board is not bound by the Director of Compensation Service's finding, which was based on the flawed VA examinations and is unsupported by the more probative findings of the Veteran's treating physician and psychiatrist. (Continued on the next page) In conclusion, the more probative evidence of record demonstrates the Veteran has been unable to secure or follow a substantially gainful occupation due to service-connected PTSD and his low back disorder. Although the Veteran is functionally impaired due to multiple non-service-connected disabilities, the evidence demonstrates the combination of the PTSD and low back disability, along with medication prescribed to treat the low back condition, prevent employment independent of the non-service-connected disabilities. Thus, the criteria for an extraschedular TDIU are met prior to October 22, 2010 and the criteria for a schedular TDIU are met on and after that date. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Smith, 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.