Citation Nr: 21041075 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 10-43 634 DATE: July 8, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) for the appellate period prior to July 16, 2010 is granted. FINDING OF FACT Resolving all reasonable doubt in the Veteran's favor, for the appellate period prior to July 16, 2010, the Veteran had been rendered unable to maintain gainful employment due to his service-connected disabilities. CONCLUSION OF LAW For the appellate period prior to July 16, 2010, the criteria for entitlement to a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 3.400, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant in this case, served on active duty from May 1993 to September 1993, from October 2003 to July 2004, and from November 2006 to March 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2008 and November 2013 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) and 38 U.S.C. § 7107(a)(2). 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 appellant 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); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Procedural History As detailed below, this matter has a complex procedural history. In a November 2008 rating decision, the RO granted service connection for posttraumatic stress disorder (PTSD) and assigned a 30 percent rating, effective March 7, 2008. In a November 2013 rating decision, the RO granted a TDIU based on all the Veteran's service-connected disabilities, effective January 7, 2013. In a January 2016 rating decision, the RO assigned a disability rating of 50 percent for PTSD, effective July 23, 2015. In decisions dated March 2017 and August 2018, the Board remanded the matter for additional development. In an April 2020 rating decision, the RO reduced the Veteran's disability rating for PTSD from 50 percent to 30 percent, effective October 24, 2019. In a September 2020 decision, the Board remanded the matter for additional development. In a January 2021 rating decision, the RO assigned a disability rating of 50 percent for PTSD, effective November 24, 2020. In a March 2021 decision, the Board denied entitlement to a rating in excess of 30 percent for PTSD prior to July 15, 2010, granted entitlement to a rating of 50 percent for PTSD from July 16, 2010 to July 19, 2015 and a rating of 70 percent from July 20, 2015 to October 24, 2019, restored a 70 percent rating for PTSD from October 24, 2019 to November 24, 2020, and granted entitlement to a TDIU, effective July 16, 2010. The Board also remanded the issue of entitlement to a TDIU for the appellate period prior to July 16, 2010 for referral to the Director of Compensation Service (Director) for consideration of an extraschedular TDIU. In a May 2021 Memorandum, the Director denied entitlement to an extraschedular TDIU. The denial was continued in a May 2021 Supplemental Statement of the Case (SSOC). The matter has now returned to the Board for further appellate consideration. 1. Entitlement to a TDIU for the appellate period prior to July 16, 2010 A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. § 3.340(a)(1). Controlling laws provide that a TDIU may be assigned when a veteran has one service-connected disability rated at 60 percent or more, or two or more service-connected disabilities where at least one disability is rated at 40 percent or more and the combined rating is at least 70 percent. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. The record must also show that the service-connected disabilities alone result in such impairment of mind or body that the average person would be precluded from securing or maintaining a substantially gainful occupation. 38 U.S.C. § 1155; 38 C.F.R. § 4.16(a). The fact that a veteran is unemployed or has difficulty finding employment does not alone warrant assignment of a TDIU, as a high rating itself establishes that his disability makes it difficult for him to obtain and maintain employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Rather, the evidence must show that he is incapable "of performing the physical and mental acts required" to be employed. Id. at 363. Thus, the central question is whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability, and not whether a veteran could find employment. Id. Consideration may be given to a veteran's education, training, and special work experience, but not to his age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. To determine whether a TDIU is warranted, the Board must consider all evidence of record to determine the earliest date as of which, within the one year prior to the filing of an informal or formal claim for TDIU, an increase in disability is ascertainable. See Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). In Ray v. Wilkie, the Court defined the term "unable to secure and follow a substantially gainful occupation" in § 4.16(b) to have two components: one economic and one noneconomic. 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. The non-economic component includes consideration of the veteran's history, education, skill, and training, whether the veteran has the physical ability to perform the type of activities required by the occupation at issue, and whether the veteran has the mental ability to perform the activities required by the occupation at issue. See Ray v. Wilkie, 31 Vet. App. 58 (2019). In this matter, for the appellate period prior to July 16, 2010, the Veteran is in receipt of the following disability ratings: obstructive sleep apnea (50 percent from July 2, 2010); PTSD (30 percent from March 7, 2008); duodenal ulcer (20 percent from March 7, 2008); left shoulder disability (10 percent from March 7, 2008 and 20 percent from March 16, 2009); right knee disability (10 percent from March 7, 2008); right foot disability (10 percent from March 7, 2008); seborrheic dermatitis (10 percent from March 7, 2008); tinnitus (10 percent from March 16, 2009); and bilateral hearing loss (0 percent from March 7, 2008). From March 7, 2008 to March 15, 2009, the Veteran had a combined disability rating of 60 percent, which does not meet the schedular threshold for a TDIU. 38 C.F.R. § 4.16(a). Accordingly, in its March 2021 decision, the Board referred the claim to the Director for consideration of an extraschedular TDIU. In a May 2021 Memorandum, the Director denied entitlement to a TDIU on an extraschedular basis, and the denial was continued in a May 2021 SSOC. Thus, in accordance with 38 C.F.R. § 4.16(b), the issue may now be adjudicated by the Board. In doing so, the Board conducts de novo review and must consider the Director's decision to be "in essence the de facto decision of the agency of original jurisdiction" and not evidence. Wages v. McDonald, 27 Vet. App. 233, 238 (2015). Beginning March 16, 2009, the Veteran meets the schedular threshold for a TDIU. This is because, effective March 16, 2009, he has a combined disability rating of 70 percent and his multiple orthopedic disabilities (affecting the left shoulder, right knee, and right foot) result in a combined rating of 40 percent and are considered "one disability" under 38 C.F.R. § 4.16(a)(3). The question remaining before the Board is whether the Veteran's service-connected disabilities have precluded him from securing and following a substantially gainful occupation during the appellate period prior to July 16, 2010. After careful consideration of the record, the Board finds that the evidence is at least in equipoise as to whether the Veteran has been rendered unable to maintain gainful employment due to his service-connected disabilities since March 7, 2008. As to the economic component of a substantially gainful occupation, the evidence shows that the Veteran has been unemployed for the entire period on appeal. See May 2013 VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability; VA examination reports dated June 2008 to October 2019. Thus, the Board finds that the Veteran did not work in a gainful capacity at any point during the appellate period prior to July 16, 2010. As to the non-economic component of a substantially gainful occupation, the Veteran worked as a supervisor of installation of European cabinets for 10 years. See June 2008 VA "Bones (Fractures and Bone Disease)" examination report. With resolution of all reasonable doubt in his favor, the evidence demonstrates that since March 7, 2008, the Veteran has not had the physical or mental ability to perform the activities required by his former occupation. Due to his service-connected left shoulder, right knee, and right foot disabilities, the Veteran was only able to stand for 15 to 20 minutes at a time, he was able to walk more than 14 of a mile but less than 1 mile, he could not squat for prolonged periods of time, he had difficulty sleeping, he had decreased mobility, decreased strength, and pain, and he had difficulty lifting and carrying objects. See June 2008 and June 2009 VA examination reports. Due to his service-connected PTSD, the Veteran endorsed deteriorated social relations as a result of his irritability and intolerance, and the October 2008 VA examiner determined that the Veteran's symptoms caused clinically significant distress or impairment in social, occupational, or other important areas of functioning. When asked to state the prognosis for improvement of the Veteran's psychiatric condition and impairments in functional status, the October 2008 VA examiner indicated it was "poor, due to age and severe symptoms." In a June 2008 VA psychiatry admission evaluation note, the Veteran endorsed poor tolerance to daily stressors, severe insomnia, irritability, anxiety, and diminished energy or motivation to do the things he used to do. (Continued on the next page) Based on the foregoing, and after resolution of all reasonable doubt in favor of the Veteran, the Board finds that a TDIU predicated on unemployability stemming from the Veteran's service-connected disabilities is warranted for the appellate period prior to July 16, 2010. The appeal is therefore granted. Finally, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. M. Gill, 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.