Citation Nr: 21040317 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 16-25 554 DATE: July 3, 2021 ORDER Entitlement to a total disability evaluation due to individual unemployability (TDIU) is granted from May 28, 2019. REMANDED Entitlement to a TDIU prior to May 28, 2019 is remanded. FINDING OF FACT The Veteran has been unable to secure and maintain substantially gainful occupation due to his service-connected disability from May 28, 2019. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met from May 28, 2019. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.114, 3.155, 3.156, 3.400, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from June 1989 until October 1991. This appeal comes to the Board of Veterans' Appeals (the Board) from a May 2013 rating decision in which the Agency of Original Jurisdiction (AOJ) denied entitlement to a TDIU. 1. Entitlement to a TDIU from May 28, 2019 The Veteran seeks a TDIU. He contends that his service-connected posttraumatic stress disorder (PTSD) with persistent depressive disorder and alcohol use disorder renders him unemployable. A TDIU may be assigned, when the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU where there is only one such disability, this disability shall be rated at 60 percent or more. 38 C.F.R. § 4.16(a). The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to an occupation earning more than marginal income, determined by the U.S. Department of Commerce as the poverty threshold for one person. Ray, 31 Vet. App. at 73. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Ray, 31 Vet. App. at 73. The Board will consider a veteran's history, education, skills, and training, as well as whether he has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Ray, 31 Vet. App. at 73. An award of a TDIU is an individualized determination, specific to a veteran's particular circumstances, such as their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran is service connected for PTSD with persistent depressive disorder and alcohol use disorder. In its August 2020 rating decision, the AOJ assigned an evaluation of 50 percent effective from June 21, 2011 and an evaluation of 70 percent effective from May 28, 2019. The Veteran has one disability rated 60 percent or more. The Board may consider the claim for a TDIU on a schedular basis for the period from May 28, 2019. 38 C.F.R. § 4.16(a); and, in that regard, TDIU is warranted. The Veteran completed the eleventh grade prior to enlistment and subsequently obtained his GED. During his May 2019 Department of Veterans Affairs (VA) examination, the Veteran further stated that he has held a string of jobs since leaving active service. He also reported that he has never held a job for more than one year since separation due to his PTSD symptoms. The Board notes that the Veteran was provided with a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability and a VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefit in December 2020. The Veteran has not completed either of these forms. Nevertheless, after review of the Veteran's claims file, the Board finds that the Veteran's VA treatment records from June 2008 through May 2013 reference a string of jobs combined with frequent unemployment. The evidence of record also provides no indication of present employment. The Veteran's ability to secure and follow a substantially gainful occupation is impacted by the mental effects of his PTSD. In his May 2019 medical opinion, the VA examiner concluded that the Veteran's PTSD affects his employability because it causes difficulty maintaining concentration, conflict with his supervisors, marked irritability around others, and a tendency towards suspiciousness of others. The VA examiner noted that the Veteran's employment history is characterized by a pattern of angering at coworkers easily and leaving the job. The Veteran reported the same PTSD symptoms in VA treatment records and his June 2016 statement. Moreover, April 2013 VA treatment records show that he attributed his inability to maintain employment to his anger issues and alcohol use, both of which are associated with his service-connected PTSD. Given the forgoing, the Board concludes that the Veteran's service-connected PTSD precludes him from securing and following a substantially gainful occupation consistent with his history, education, skills, and training. TDIU is warranted with an effective date of May 28, 2019. REASONS FOR REMAND 1. Entitlement to a TDIU Prior to May 28, 2019 From June 21, 2011 until May 28, 2019, the Veteran's service-connected PTSD was rated at 50 percent. The Veteran's disability did not meet the schedular criteria during that period. 38 C.F.R. § 4.16(a). However, referral for extraschedular TDIU under 38 C.F.R. § 4.16(b) must still be considered. The Board may not consider the Veteran's claim for a TDIU prior to May 28, 2019 in the first instance, but will refer it to the Director, Compensation Service if there is a reasonable possibility that he was unemployable by reason of service-connected disabilities during that time. 38 C.F.R. § 4.16(b); Bowling v. Principi, 15 Vet. App. 1, 9 (2001). The evidence of record portrays significant occupational impact from the Veteran's service-connected PTSD well before he met the requirements for schedular consideration of a TDIU. For instance, VA treatment records from June 2008 through May 2013 discuss the Veteran's PTSD symptoms, such as becoming angry easily, feeling stressed around others, and losing focus. The VA treatment records also reference a string of jobs that the Veteran has held since his separation, including employment as an animal slaughterer, meatpacker, oil rig worker, butcher, and horseshoer. In relation thereto, his statements in VA treatment records from June 2011, November 2014, and September 2015 connote frequent periods of unemployment due to his PTSD symptoms. Additionally, to the extent that the Veteran was able to obtain employment prior to May 28, 2019, the record suggests that some of this employment was marginal, as it occurred in a protected environment. See Cantrell v. Shulkin, 28 Vet. App. 382, 389-91 (2017). Considering the limitations of the Veteran's service-connected PTSD on any form of substantially gainful employment before he met the schedular criteria, the Board finds that referral to the Director, Compensation Service for extraschedular TDIU is warranted. The matter is REMANDED for the following action: Refer the Veteran's claim for TDIU prior to May 28, 2019 to VA's Director, Compensation Service for extraschedular consideration. Then, readjudicate the extraschedular TDIU claim. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R.M. Sachs, 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.