Citation Nr: 21032240 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 20-08 761 DATE: May 26, 2021 ORDER For the period prior to August 15, 2017, a total disability rating based on individual unemployability (TDIU) is denied. For the period prior to August 15, 2017, entitlement to Dependents' Educational Assistance (DEA) benefits under Title 38, U.S.C. Chapter 35 is denied. FINDINGS OF FACT 1. Prior to August 15, 2017, the Veteran's service connected disabilities did not preclude him from securing or maintaining substantially gainful employment. 2. The Veteran has been found to have a permanent and total evaluation due to service-connected disabilities, effective August 15, 2017. CONCLUSIONS OF LAW 1. The criteria for entitlement of a TDIU prior to August 15, 2017 are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. 2. The criteria for entitlement to DEA benefits under Chapter 35, for the period prior to August 15, 2017, are not met. 38 U.S.C. §§ 3500, 3501, 3510; 38 C.F.R. § 3.807. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1959 to September 1962, and from November 1962 to November 1965, with additional service in the Army National Guard. The case is on appeal from a March 2018 rating decision. Most recently, in a July 2020 decision, the Board granted service connection for a kidney disease and denied the issues of service connection for a bilateral ankle disability, bilateral foot disability, a right hip disability, an increase rating evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD) prior to August 15, 2017, and in excess of 70 percent thereafter. The Board also remanded, in pertinent part, the issues of entitlement to a TDIU and DEA benefits prior to August 15, 2017. The Board notes that the Veteran appealed to the United States Court of Appeals for Veterans' Claims (Court) the issues denied in the July 2020 Board decision. Thereafter, in May 2021, the Veteran filed a Motion to dismiss all issues on appeal. Accordingly, in a May 6, 2021 Order, the Court dismissed the pending appeal. While the Veteran submitted his VA Form 21-8940 (Application for Increased Compensation based on Unemployability) in October 2017, additional evidence of record shows that the Veteran has attributed his unemployability, at least in part, to his service-connected PTSD. Accordingly, the Board finds that the issue of a TDIU is part and parcel of the initial increase rating claim for PTSD for the period beginning on March 29, 2016. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In that regard, the Board notes that despite the initial increase claim for a rating in excess of 30 percent for PTSD prior to August 15, 2017, is currently pending revision before the Court, the evidence of record is sufficient for the Board to adjudicate the claims on the merits. In March 2021, the Veteran's representative submitted additional evidence in support of this claim. Waiver of RO consideration of the additional evidence is presumed given the date of the substantive appeal. See 38 U.S.C. § 7105(e). Also, additional evidence has been either received or associated by the RO with the Veteran's claim's file following the January 2020 statement of the case (SOC). However, as the evidence is either cumulative or not pertinent to the period herein discussed, a remand for RO consideration of the evidence is not necessary. See 38 C.F.R. § 20.1305(c). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. A TDIU prior to August 15, 2017. 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. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled, even when the required criteria under § 4.16 (a) for a TDIU on a schedular basis are not met. See 38 C.F.R. § 4.16(b). In such exceptional circumstances, the Board should submit to the Director, Compensation Service, for consideration on an extraschedular basis. Id. 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 workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). Analysis At the outset, the Board notes that a TDIU is in effect from August 15, 2017. The Veteran contends that a TDIU is warranted for the period prior to that date; however, without supporting arguments or a specific contention. See February 2, 2018 and April 9, 2018 NODs; see also February 24, 2020 VA Form 9. As previously noted, the present claim stems from a September 2016 NOD in support of an initial higher rating for PTSD, which in turn stems from an initial claim of service connection received on March 29, 2016 claim under Rice. See October 2017 TDIU claim (The veteran asserts that his service-connected disabilities, to include his PTSD-related mood swings and panic attacks, interfered with his functional ability). As such, the question for the Board is whether the Veteran's service-connected disabilities precluded him from securing or maintaining substantial gainful employment at any time prior to August 15, 2017, but only from March 29, 2016, which is the date since the Veteran's service connection awards have been in effect. Thus, approximately a one and a half year rating period is at issue. Prior to August 15, 2017, the Veteran had a combined rating evaluation of 40 percent from March 29, 2016 to January 1, 2017; and of 50 percent from January 2, 2017 to August 15, 2017. His service-connected disabilities during that period include PTSD rated at 30 percent; tinnitus rated at 10 percent; right knee strain rated at 10 percent (only from January 2, 2017); left knee strain rated at 10 percent (only from January 2, 2017); and a noncompensable rating for bilateral hearing loss. As such, the criteria for a TDIU on a schedular basis is not met for the period in question. See 38 C.F.R. § 4.16(a). However, as previously noted, a Veteran is not precluded from establishing entitlement to a TDIU on an extraschedular basis when there are exceptional circumstances indicating that a Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. See 38 C.F.R. § 4.16(b). While the Board does not have the authority to assign an extraschedular TDIU in the first instance, it can decide whether or not a claim should be referred to the Director, Compensation Service. See Wages v. McDonald, 27 Vet. App. 233 (2015); Bowling v. Principi, 15 Vet. App. 1, 10 (2001). In his October 2017 TDIU application, the Veteran indicated that his last full-time employment was as an Academic Advisor for an institution of higher learning, position he held from April 1997 until May 2014, when his service-connected disabilities rendered him unable to work. The Veteran also indicated that prior to working as an academic advisor, he retired from the U.S. Postal Service after 26 years of service (1966-1992). Following his retirement, the Veteran worked as a Construction Worker from 1993 to 1994, and as a Program Therapist for the Texas Youth Commission from 1994 to 1997. As for his education, the Veteran indicated that he has a master's degree in counseling. The Veteran indicated that he began experiencing mood swings and panic attacks sometimes. He further noted that for 15 years he drove 85 miles to work every day, until one day he blacked out on the highway. In a January 2018 A VA Form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefits), the Veteran's former and last employer indicated that his last date of full-time employment was May 31, 2014, when the Veteran retired after 15 years of employment. The employer further noted that the reasons for the Veteran's termination of employment are "unknown." VA treatment records for the period in question reflect that the Veteran's service-connected disabilities were stable. To that effect, during a March 2016 Social Work note, the VA provider noted a negative history of suicidal or homicidal thoughts. The Veteran was described as an alert and oriented person as to place time and situation, that his speech spontaneous and normal in rate, rhythm and volume, euthymic or normal mood, congruent affect, with his though processes logical and goal directed, without visual or auditory hallucinations or delusions, cognition intact and adequate insight and judgement. The Veteran denied needing any mental health follow-up services and indicated that the prescription to relax he was taking at the time is all he needed. See March 22, 2016 Social Work Consult entries. Thereafter, during an April 2016 VA primary care appointment, the Veteran indicated that he does not need medications for depression and denied suicidal or homicidal thoughts. The VA provider noted that the Veteran was oriented x 4, that his gait was normal, and that the Veteran was ambulant without support. He also underwent an At Risk Wandering Screen which revealed that he "is not considered gravely disabled due to a mental disorder; or does not lack the cognitive ability to make relevant decisions; or does not have a physical or mental impairment that increase their risk of harm to self or others." The Veteran also underwent a Lawton Instrumental Activities of Daily Living Scale assessment which revealed that he was highly functional and independent. Despite the Veteran reports of little interest or pleasure in doing things several days a week, he clearly denied feeling down, depressed or hopeless. The Veteran indicated that he was eager to learn. The VA provider noted that his comprehension was high and without learning barriers. See April 6, 2016 Primary Care assessment report; see also May 8, 2017 Education Screening. In May 2017, the Veteran indicated to a VA nurse feeling little interest or pleasure, down, depressed or hopeless nearly every day. On the same day, the Veteran denied to his VA provider feeling hopelessness or having suicidal thoughts. The Veteran also underwent an "At Risk Wandering Screen" which revealed he is not gravely disabled due to a mental disorder; or does not lack cognitive ability; or does not have physical or mental impairments that increase their risk of harm to self or others. The Veteran was found oriented x 4, with normal gait and ambulant without support. During the interview, the Veteran acknowledged an increase with his nightmares, which he described as chronic, and intrusive memories "now that [he] was retired and [did not] have things to distract [him] or keep [his] mind busy." At this time, he requested treatment for his PTSD-related symptoms. See May 8, 2017 progress notes. The VA provider indicated that the Veteran's hygiene was adequate, that he was cooperative and reasonable, alert and attentive, oriented to time, place, person, and situation, with normal mood, congruent affect, normal perception, thought processes and content, with intact memory and fair insight and judgement. The Veteran denied having ever experienced disciplinary problems at work or being terminated from a job, and that he did not require any vocational assistance for employment or educational purposes. Thereafter, a June 2017 psychology note reflects that the Veteran's PTSD symptoms were mostly manifesting by nightmares and intrusive memories. The Veteran reported difficulty sleeping and remembering occurrences of periods in the military service. See June 29, 2017 progress notes. During a June 2016 VA lumbar spine examination, the Veteran reported difficulty working on his ranch as he cannot do heavy lifting due to his nonservice-connected lumbar spine disability. Thereafter, the Veteran underwent a hearing loss and tinnitus VA examination in July 2016. With respect to the effect of his disabilities over his functional capacity, the VA examiner noted that his hearing loss gives him a hard time "understanding normal conversation[s], especially in a noisy place." As for his tinnitus, the examiner indicated that it "interferes with normal conversation [], has a hard time understanding and has to ask people to repeat themselves." The Veteran was afforded a VA PTSD examination in August 2016. The examination report reflects that the Veteran's PTSD more closely approximates occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgement, thinking, and/or mood. The Veteran indicated that he had to stop working given that his mental health issues began to manifest by impatience, memory issues and mood swings. The Veteran reported experiencing symptoms such as panic attacks, isolation and sleep impairment. Nevertheless, the Veteran indicated he was not receiving any treatment for his disability. The examination report includes symptoms such as depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, disturbances with motivation and mood, and difficulty in establishing and maintaining effective work and social relationships and adapting to stressful circumstances, including work or a work like setting. The Board notes that during a December 2017 VA PTSD examination, the Veteran reported to the VA examiner that he was "asked to leave his last employment due to the increasing issues with impatience at work and with students. Ultimately, in March 2021, the Veteran's representative submitted an "Expert Independent Medical Review" from Dr. D.B.M., which addresses the Veteran's musculoskeletal disabilities, mainly his knees, back and ankles. The Board will only address the bilateral knee disability but only from January 2, 2017, date from which an award of service connection has been in effect. As for the ankles and back disabilities, for the period prior to August 15, 2017, the record does not show that the Veteran was in receipt of service connection benefits for a bilateral ankle or a back disability. Dr. D.B.M. indicted that the Veteran experiences persistent knee pain which prevents him from squatting, kneeling, maneuver stairs, or sit with his knees acutely flexed without pain markedly escalating. The private examiner added that for the Veteran to sit "acutely flexed" such an in an airplane is literally unbearable because of the pain escalation. In sum, the examiner stated that he has a difficult time going from a sitting to a standing position since this will also increase the pain in both knees. As previously stated, a TDIU requires evidence that the Veteran is unable to pursue a substantially gainful occupation due to his service-connected disabilities. The Board has reviewed the evidence of record and, for the reasons set forth below, finds that for the period prior to August 15, 2017, the Veteran's service-connected disabilities did not preclude him from securing or following substantially gainful employment. The Board has considered the Veteran's claim as to whether a TDIU is warranted prior to August 15, 2017. In doing so, the Board has considered the veteran's history, education, skill, and training; his physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by his last occupation as an Academic Advisor, his limitations concerning memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity. See Ray, 31 Vet. App. at 73. Upon review of the medical records and the Veteran's statements and reports to his VA providers throughout the period in question, the Board finds that the evidence does not show an exceptional circumstance indicating that the Veteran was not able to maintain his job by reason of his service-connected disabilities. While the Veteran reported in his October 2017 TDIU claim that his PTSD symptoms began to manifest by mood swings and panic attacks, which consequently resulted in his inability to continue working, he also indicated that he retired after he "blacked out" while driving on the highway on his way to or from work. In addition, the Veteran indicated during a subsequent December 2017 VA PTSD examination that "he was asked to leave his employment due to the increasing issues with impatience at work and with students." Notwithstanding, VA treatment records reflect that prior to August 15, 2017, the Veteran denied having ever experienced disciplinary problems at work or being terminated from a job. This is supported by the VA Form 21-4192 completed by the Veteran's former employer who indicated that the reasons for retirement or termination of the Veteran's employment are "unknown." Moreover, while the Veteran has also indicated that he had to stop working as his mental health issues began to manifest by impatience, memory issues and mood swings, VA treatment records indicate otherwise as not only his VA providers confirmed that his memory was intact, but the Veteran denied needing any mental health follow-up services at that time and indicated that the prescription he was taking to relax is all he needed. See March 2016 progress notes. Furthermore, he acknowledged, in general, that he did not need medications for depression and denied feeling down, depressed or hopeless. See April 2016 progress notes. This is supported by the VA providers assessments during the period in question by indicating that the Veteran was not considered gravely disabled due to a mental disorder, or that he did not have a physical or mental impairment, and that he was highly functional and independent. See April 2016 and May 2017 progress notes. As to the June 2016 VA examination, the Board acknowledges that the VA examiner opined that the Veteran's PTSD more closely approximated occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgement, thinking, and/or mood. This characterization of the level of impairment provide a list of examples where deficiencies may exist; however, it does not translate to deficiencies in all areas. The question here is not the severity of the Veteran's manifestations, but whether such manifestations precluded him from following or maintaining substantially gainful employment. As noted above, the additional medical and lay evidence of record does not suggest that the Veteran's PTSD symptoms directly interfered with his employability. As to the bilateral knee disability addressed by the March 2021 independent medical review, the Board notes that such symptomatology more likely appears to correspond to the period during which the examination was conducted and not necessarily reflect a retrospective assessment or the severity of the Veteran's bilateral knee disability prior to August 15, 2017. This is particularly so since during a May 2017 "At Risk Wandering Screen," a VA nurse not only noted that the Veteran does not have a physical impairment that increases any risk to self or others, but that the Veteran had a normal gait and was able to fully ambulate without support. In addition, the private examiner acknowledged that it was in October 2017, during a VA examination, that the Veteran began to complaint of knee pain flare-ups that made it difficult for him to bend, walk, or performed prolonged standing. With respect to the impact of the Veteran's hearing loss, tinnitus, bilateral knee disability over his employability, and the May and June 2017 VA progress notes possibly suggesting a worsening of PTSD symptoms such as chronic sleep impairment, panic attacks and depressed mood, the Board notes that for purposes of the present TDIU claim, they have been properly compensated under their respective rating percentages. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). As the evidence does not reflect circumstances of unemployability due to the Veteran's service-connected disabilities, the preponderance of the evidence is against the claim and referral to the Director, Compensation Service for consideration of a TDIU prior to August 15, 2017, on an extraschedular basis, is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, entitlement to a TDIU prior to August 15, 2017 is not warranted. 2. DEA benefits prior to August 15, 2017. Basic eligibility for Chapter 35 benefits for the child or surviving spouse of a veteran may be established if: (1) the veteran was discharged from service under conditions other than dishonorable, or died in service; and (2) the veteran has a permanent total service-connected disability; or (3) a permanent total service-connected disability was in existence at the date of the veteran's death; or (4) the veteran died as a result of a service-connected disability. 38 U.S.C. §§ 3500, 3501, 3510; 38 C.F.R. § 3.807. The Veteran contends that entitlement to an earlier effective date prior to August 15, 2017, for the award of DEA benefits under Ch. 35, is warranted as his TDIU should have been assigned prior to that date. As the Board has determined that an earlier date is not warranted for a TDIU, an earlier date for DEA benefits is also not warranted. Therefore, DEA benefits prior to August 15, 2017, are not warranted. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board William Pagan, 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.