Citation Nr: 21031514 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 15-13 675 DATE: May 24, 2021 ORDER A total disability rating based on individual unemployability due to service-connected disabilities (TDIU), to include on an extraschedular basis, is granted for the entire period on appeal prior to November 19, 2018 (from August 22, 2012 to November 18, 2018). FINDING OF FACT The Veteran's service-connected disabilities precluded gainful employment consistent with his education and occupational experience prior to November 19, 2018. CONCLUSION OF LAW The criteria for the grant of an extraschedular TDIU prior to November 19, 2018 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from April 2003 to June 2004. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in July 2018, when it was remanded for further development. In its July 2018 remand, the Board found that the Veteran raised a claim for a TDIU as part and parcel of his claim for a higher initial disability rating for posttraumatic stress disorder (PTSD). See Rice v. Shinseki, 22 Vet. App. 447 (2009). 1. TDIU The Veteran asserts than an earlier effective date is warranted for the grant of TDIU, which was granted effective November 19, 2018, in a December 2020 rating decision. See rating decision, December 7, 2020. Specifically, the Veteran generally asserts that TDIU is warranted prior to November 19, 2018. Specific argument in support of this appeal has not been provided. Because the TDIU claim is part and parcel of the Veteran's appeal for a higher initial disability rating for his service-connected PTSD, the relevant period on appeal is from August 22, 2012, the effective date of the grant of service connection for PTSD, to November 18, 2018, as a TDIU is in effect thereafter. The Veteran indicated he was unable to work due to his disabilities in his original claim for TDIU in July 2013. See claim, received by VA July 10, 2013. He was denied TDIU in a June 2014 rating decision. See rating decision, June 11, 2014. The Veteran applied for TDIU again in October 2018. See VA Form 21-8940, received by VA October 29, 2018. In this document, the Veteran stated that he last worked full time in June 2008 and became too disabled to work in June 2008. He was awarded TDIU effective November 19, 2018, in a December 2020 rating decision. See rating decision, December 7, 2020. The Veteran submitted a second VA Form 21-8940 in June 2020. See VA Form 21-8940, received by VA June 20, 2020. He related that PTSD, anxiety, "very high" blood pressure, panic attacks, depression, not liking leaving the house, and not trusting anyone all combined to prevent him from securing or following any substantially gainful employment. In this document, the Veteran stated that he last worked full time in June 2007 and became too disabled to work in June 2008. His past employment history was reported to include work as a laborer and diesel mechanic. The Veteran related that his education included two years of high school. VA will grant TDIU when the evidence shows that a Veteran is precluded, by reason of service-connected disability, from obtaining and maintaining any form of gainful employment consistent with his or her education and occupational experience. See 38 C.F.R. §§ 3.340, 3.341, 4.16. Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service-connected disability or disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). In Faust v. West, 13 Vet. App. 342 (2000), the United States Court of Veterans Appeals (now the United States Court of Appeals for Veterans Claims) (Court) defined substantially gainful employment as "an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income." Marginal employment may also be held to exist on a facts-found basis, including but is not limited to, employment in a protected environment such as a family business or sheltered workshop, when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a). In Moore, the Court discussed the meaning of "substantially gainful employment." In this context, it noted the following standard announced by the United States Federal Court of Appeals in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): "It is clear that the claimant need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant." Id. at 359. Under 38 C.F.R. § 4.16, if there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. 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. See 38 C.F.R. § 4.16(a). 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 disability, and consideration is given to the veteran's background, including his or her employment and educational history. See 38 C.F.R. § 4.16(b). The Veteran currently has service connection for PTSD, evaluated as 50 percent disabling from August 22, 2012 and as 70 percent disabling from November 19, 2018; left ear tinnitus, evaluated as 10 percent disabling from March 31, 2008; hypertension, evaluated as 10 percent disabling from March 31, 2008; and left ear hearing loss, evaluated as noncompensably disabling from March 31, 2008. As such, the Veteran's combined rating was 20 percent from March 31, 2008, 60 percent from August 22, 2012, and 80 percent beginning on November 19, 2018. Prior to November 19, 2018, the Veteran's combined rating did not render him eligible for TDIU under the schedular percentage requirements contemplated by VA regulations. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Although the Veteran's disability picture during the period on appeal (prior to November 19, 2018) does not meet the criteria set forth at 38 C.F.R. § 4.16(a), a total disability rating may also be assigned on an extraschedular basis, pursuant to 38 C.F.R. § 4.16(b). Section 4.16(b) applies to Veterans who are unemployable by reason of service-connected disabilities but fail to meet the percentage standards set forth in section 4.16(a). Such cases are referred to the Director, Compensation Service, for extraschedular consideration. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. Accordingly, this matter was referred to the Director of Compensation and Pension Services for consideration of entitlement to TDIU on an extraschedular basis. The Director denied extraschedular TDIU, citing that the Veteran's records prior to November 2018 did not show that his service-connected conditions were so severe as to preclude gainful employment. The Director concluded that the evidence failed to support the contention that any of the service-connected disabilities, or a combination of the effects of those disabilities, prevented employment. See Advisory Opinion, January 7, 2021. The Board disagrees. Since the Director has provided a determination as to entitlement on an extra-schedular basis, the Board now has jurisdiction to decide the issue. The Board notes that it does so while placing no weight on the findings of the Director of Compensation Service, as that is a non-binding administrative determination and does not constitute medical evidence. See Wages v. McDonald, 27 Vet. App. 233, 239 (2015). Unlike the criteria for an extraschedular rating under 38 C.F.R. § 3.321, the grant of an extraschedular rating for a TDIU under 38 C.F.R. § 4.16 is based on a subjective standard that seeks to determine if a particular veteran is precluded from employment based on his service-connected disabilities. See VAOPGCPREC 6-96 (1996). For a veteran to ultimately prevail on a claim for TDIU on an extraschedular basis, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability 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 can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Again, contrary to the finding made by the January 2021 Director of Compensation Services, the Board finds that entitlement to a TDIU on an extraschedular basis, prior to November 19, 2018, is warranted. As an initial matter, the Board notes that the Director's decision is not evidence, but, rather, the de facto AOJ decision, and the Board must conduct de novo review of said decision and make an independent determination on the matter. Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015) (holding that the Board conducts de novo review of the Director's decision denying extraschedular consideration). The Veteran underwent a PTSD examination in February 2013. See Initial PTSD Disability Benefits Questionnaire (DBQ), February 15, 2013. The examiner noted that the Veteran was unemployed and experienced chronic substance abuse. The examiner stated that the Veteran was employed as a truck driver from 2007 to 2008 but failed to pass the annual hearing examination and was let go from the job. The Veteran related that he called out of work too often and could only work part time because he did not wish to lose his Social Security benefits. The Veteran stated that the Veteran was not employed from 2008 to 2012 and performed unpaid labor on his father's fruit farm. The Veteran also stated that he owed taxes on the farm for the past three years, suggesting that the farm did have an income. The Veteran also related that he worked part time at a home improvement store from May 2012 to November 2012 but could not get along with the "idiots" there. The Veteran stated that he had not been employed since November 2012, and he did not miss any time from work at the home improvement store due to PTSD. The examiner opined that the Veteran's depressive disorder was not severe enough to render him incapable of obtaining or holding substantially gainful employment. The Veteran underwent a PTSD examination in February 2014. See Initial PTSD DBQ, February 26, 2014. The Veteran reported having issues with relationships, not leaving home, dropping out of high school in the tenth grade and earning his GED in 1993, and not working since 2008. The Veteran reported that after he separated from service he worked as a mechanic and a truck driver. The Veteran stated that he received Social Security benefits for hypertension and hearing since 2008, but the examiner related that there were no Social Security records in evidence. The Veteran stated that he was "always on the defensive," that he had a great relationship with his girlfriend, that he ate every other day, he experienced sleep issues and slept three to four hours a night, had high energy, had "terrible" road rage, had "terrible" memory, and forgot to complete projects he worked on. The examiner opined that the Veteran did not display any difficulties with his activities of daily living due to mental health issues. The examiner opined that there was a good prognosis for substantial improvement of psychiatric symptoms. The Veteran underwent an audiological examination in March 2013. See Hearing Loss and Tinnitus DBQ, March 1, 2013. The examiner opined that the Veteran's hearing loss impacted ordinary conditions of life, including his ability to work, as the Veteran had difficulty understanding people, could only hear at a raised volume, and caused others to complain about his hearing loss. The examiner opined that the Veteran's tinnitus did not have an impact on his ordinary conditions of life, including his ability to work. The Veteran underwent another audiological examination in February 2014. See Hearing Loss and Tinnitus DBQ, February 26, 2014. The examiner opined that the Veteran's hearing loss impacted ordinary conditions of life, including his ability to work, as the Veteran had reported having no hearing in the left ear. The examiner opined that the Veteran's tinnitus did not have an impact on his ordinary conditions of life, including his ability to work. The Veteran underwent a PTSD examination in February 2017. See Initial PTSD DBQ, February 28, 2017. The Veteran reported that he stopped working because he could no longer hear out of his left ear and became a "liability" at work. The examiner noted that the Veteran had a history of drugs and heavy alcohol use for many years, with a period of full sobriety which lasted one year (2013-2014). The Veteran reported that he slept with the use of medical marijuana, had nightmares with night sweats, was very anxious and constantly checked doors and windows, has nailed two of the windows shut, was "a pretty angry dude" but tried to learn how to mellow out, and had "terrible, terrible" memory. The examiner opined that the Veteran did not display any difficulties with his activities of daily living due to mental health issues, and that he denied current suicidal or homicidal ideation or full-blown panic attacks. The examiner stated that, upon testing, the Veteran's presentation was suggestive of severe emotional pathology characterized by high anxiety, possibly to the point over paranoia, and likely atypical thoughts and behaviors due to social and self-alienation. The measures of anxiety and depression were highly elevated, to the extent that they were inconsistent with Veteran's verbal self-report and presentation. The examiner opined that there was minimal prognosis for substantial improvement of psychiatric symptoms. The Veteran underwent a PTSD examination in November 2018. See Initial PTSD DBQ, November 19, 2018. The Veteran reported that he had only three relationships with his child, whom he saw twice a month, his mother, and a friend. The examiner stated that the Veteran developed cannabis use disorder as a coping mechanism for anxiety and sleep concerns secondary to PTSD. The Veteran reported that he has not worked in a long time, lived with his mother and took care of her, and had not worked in over five years. He stated that he hardly left the house and had a history of verbal altercations, use cannabis twice a day, and had alcohol once or twice a month. The examiner stated that the Veteran experienced depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, and inability to establish and maintain effective relationships. The examiner opined that the Veteran experienced moderate psychiatric symptoms, that the Veteran had significant difficulty functioning around other people, had difficulty functioning as a team member, and felt uncomfortable around others. The examiner stated that the Veteran did not trust the world in general, could not stand to be out in public around others, and experienced a high degree of hypervigilance and suspiciousness. The Veteran underwent another PTSD examination in December 2020. See PTSD DBQ, December 4, 2020. The examiner opined that the Veteran experienced occupational and social impairment with reduced reliability and productivity. The Veteran related that he had been single for over a decade, did not have contact with three of his four adult children, had weekly visits with his mother, had no contact with his sister, and depended on his mother to drive him around and to go out with him as he was too anxious to go out by himself. He reported having no friends. The Veteran reported that he worked on his house, played with his dog, took his dog for walks, and worked on puzzles to keep his memory sharp. The Veteran stated that he had difficulties concentrating, found housework frustrating, and had a difficult time finishing household tasks. As for employment, the Veteran stated that he last worked in welding about five years ago for three to four months, and left due to issues with his co-workers, whom he saw as not "pulling their weight." He also reported having problems with his supervisor, who yelled at him and belittled him. He stated that he was arrested in 1995 for alcohol use but denied current substance use. The Veteran stated that he experienced nightmares and enjoyed being alone. He stated that he had issues with memory and stopped taking pain medication when he felt that he was becoming addicted. The December 2020 VA examiner stated that the Veteran experienced depressed mood, anxiety, near-continuous depression affecting his ability to function independently, appropriately, and effectively, chronic sleep impairment, impairment of short and long term memory, circumstantial, circumlocutory or stereotyped speech, difficulty adapting to stressful circumstances, including work or a work-like setting, and inability to establish and maintain effective relationships. The Veteran appeared well groomed, was calm and cooperative, was pleasant, his speech was clear and coherent, he had lots of word-finding issues, his mood and affect were depressed, this thought process was goal-directed, tangential and circumstantial, and his thought content was normal. There was no evidence of mania, hallucinations, or delusions. The Veteran denied suicidal thoughts or intent. Insight and judgment were fair, and memory was limited and impaired. The examiner opined that the Veteran experienced moderate depressive symptoms, severe distress when it came to anxiety, and severe PTSD symptoms. As for occupational impairment, the examiner noted that the Veteran's employment as a welder was terminated due to his inability to work well with others, being at odds with coworkers and managers, and the inability to listen and take directions. The examiner opined that the prognosis for occupational function was guarded, and dependent on his ability to find solitary employment with minimal interaction with others. The examiner stated that the Veteran's multiple issues with memory could impair his ability to complete jobs with complex multilevel steps. The Veteran's VA treatment records show that he reported being unemployed since 2007, worked as a truck driver for six months and as a wheel mechanic for two and a half years, missed a lot of work, called out sick, and ran out of sick time. The Veteran endorsed a history of "had been drinking heavily" and denied a history of drug use. See VA treatment records, January 25, 2008. The Veteran told his provider that his PTSD symptoms included mood and sleep disturbances, and that he has not been able to work. See VA treatment records, January 17, 2008. The Veteran's private treatment records show that he experienced anxiety and depression and took medication for the condition. See medical treatment records, Gobles Medical Clinic, December 10, 2013; November 18, 2014; March 3, 2015; August 6, 2015. The onset date of anxiety was noted to be December 10, 2013. See medical treatment records, Gobles Medical Clinic, December 10, 2013. In a statement, the Veteran indicated that his children were scared of him due to his anger and mood swings, that his wife and children have moved out, that he beat himself up, hated himself, did not know anymore how to feel, act, or think, that he was alone and pushed everyone away, and that he trusted no one. See Veteran statement, received by VA March 27, 2014. In another statement, the Veteran indicated that he tried to work for himself "doing brake work, oil changes, transmission filter, fluid changes, and general parts replacement." The Veteran related that his business lasted last than two months due to lack of work. See Veteran statement, received by VA September 22, 2020. Subsequently, the Veteran related that he was self-employed in May 2017 for three weeks, had only one customer who paid five dollars for a tire repair, and had to put an end to his business due to lack of customers. See Veteran statement, received by VA October 24, 2020. The Veteran related that he last worked in a part time job at Pillar Manufacturing from the Spring of 2013 to the Fall of 2013 and was employed before that at UTES at Ft. Custer from 2006 to 2008. The Veteran stated that he left his job due to his disability and has not tried to obtain employment since he left work. The Veteran stated that his highest level of education was two years of high school. He stated that he could not handle being away from home, could not concentrate, had panic attacks, was very nervous, found it difficult to be around strangers, and felt safe and secure at home. See VA Form 21-8940, received by VA June 20, 2020. Lay statements of record indicated that the Veteran's service in Iraq in 2003 and 2004 had a significant impact on him, increasing his anxiety and tendency to isolate himself. A February 2013 statement from the Veteran's mother reported that the Veteran has had a difficult time maintaining relationships after his deployment, and that he did not seem able to work for any period of time. She also noted that the Veteran often does not return phone calls or otherwise engage in conversations, that the Veteran lost his temper and became angry regularly, that he has pushed family members away, consumed alcohol to ease his pain and depression, and that the Veteran's girlfriend was afraid to be around him. The Veteran's mother added that the Veteran appeared unable to deal with life. See lay statement by C.A.H., received by VA February 1, 2013. A February 2013 statement from the Veteran's now-ex girlfriend reported that he avoided crowded places, slept a lot, yelled in his sleep, was violent in his sleep, experienced extreme anger, did not like to be out in public, and that his symptoms worsened when he consumed alcohol. See lay statement by D.Z., received by VA February 1, 2013. A June 2013 statement from S.M. indicated that the Veteran experienced a significant change following his active service. The lay statement reported that the Veteran used to be "very outgoing," but his PTSD "has consumed his life." S.M. reported that the Veteran experienced social isolation, was always on alert, was always aware of his surroundings, had trouble in groups, had panic attacks, experienced short term memory loss, had shortness of breath, nightmares, cold sweats, and rapid heartbeat to the point where his heart felt like it was "being ripped from his chest." See lay statement by S.M., received by VA April 20, 2015. In another statement, S.M. added that the Veteran struggled to fall asleep and often stayed up for days at a time, experienced constant fatigue, kicked in his sleep. See lay statement by S.M., received by VA September 2, 2016. In giving the benefit of the doubt to the Veteran, the Board finds that the Veteran has been unable to secure or maintain a substantially gainful occupation as a result of his service-connected disabilities. The medical evidence reflects the Veteran's PTSD symptoms limited his functioning, and memory loss, problems concentrating, and difficulty in adapting to stressful circumstances (including work or worklike setting) caused him caused him to have difficulty with coping with the demands of a work environment. His hearing loss prevented him from hearing, a skill which is necessary for communicating in a work environment. In combination, the Veteran's service-connected disabilities prevented the Veteran from performing the physical and mental tasks of substantially gainful employment during the entire period on appeal. In this regard, while the Veteran reported that he worked for himself in 2017 in a protected work environment, he apparently only made five dollars doing so. Thus, there is no evidence that he earned income above the poverty threshold according to the U.S. Department of Commerce, Bureau of the Census. See 38 C.F.R. § 4.16(a); see also Ortiz-Valles v. McDonald, 28 Vet. App. 65, 71 (2016) ("[T]he only logical reading of the regulation compels the conclusion that a veteran might be found unable to secure or follow a substantially gainful occupation when the evidence demonstrates that he or she cannot secure or follow an occupation capable of producing income that is more than marginal, i.e., with income that exceeds the amount published by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person."). Thus, for all the foregoing reasons, the Board finds that the claim for entitlement to a TDIU on an extraschedular basis is warranted for the entire period on appeal (from August 22, 2012 to November 18, 2018. An effective date prior to November 19, 2018, for the grant of entitlement to TDIU is granted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990), 38 C.F.R. § 3.340. T. SHERRARD Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Lech, 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.