Citation Nr: 21041165 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 05-00 636 DATE: July 8, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) from September 9, 2003 to March 27, 2013, including on an extraschedular basis from March 19, 2008 to June 17, 2012, is granted. FINDING OF FACT The evidence is in relative equipoise as to whether, as of September 9, 2003 to March 27, 2013, the Veteran's service-connected disabilities precluded him from securing and following substantially gainful employment consistent with his education and experience. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in favor of the Veteran, the criteria for the assignment of a TDIU beginning September 9, 2003 to March 18, 2008 and from June 18, 2012 to March 27, 2013 have been met. 38 U.S.C. § 1155; 38 C.F.R. § 3.340, 3.341, 4.16(a). 2. Resolving all reasonable doubt in favor of the Veteran, the criteria for the assignment of a TDIU on an extraschedular basis beginning March 19, 2008 to June 17, 2012, have been met. 38 U.S.C. §§ 5103A, 5107; 38 C.F.R. 3.102, 3.400, 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1968 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. This matter was previously before the Board in February 2011, wherein the Board denied entitlement to a TDIU. The Veteran appealed the portion of the February 2011 Board decision that denied entitlement to a TDIU to the United States Court of Appeals for Veterans Claims (Court). By way of an October 2011 Joint Motion for Partial Remand (JMPR), the parties agreed that remand was warranted as the Board failed to utilize the correct legal standard for determining the Veteran's entitlement to a TDIU. This matter was before the Board again in May 2012, August 2018 and January 2021, wherein the Board remanded for additional development. The matter has returned to the Board for adjudication. This appeal has been advanced on docket pursuant to 38 C.F.R. §§ 20.900(c) (2017). 38 U.S.C. §§ 7107(a)(2). Total disability will be considered to exist 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. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person 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, the disability shall be ratable at 60 percent or more, and that, if there are two or more service connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). In the alternative, if the Veteran does not meet the percentage requirements, but is nevertheless rendered unable to obtain or maintain substantially gainful employment by reason or one or more service-connected disabilities, the matter must be submitted to the Director of Compensation Service for extraschedular consideration. 38 C.F.R. § 4.16(b). Under VA law, the Board is precluded from assigning a TDIU rating on an extraschedular basis in the first instance. Instead, the Board must refer any claim that meets the criteria for referral for consideration of entitlement to TDIU on an extraschedular basis to the Director, Compensation Service. Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Substantially gainful employment is "that which is ordinarily followed by the non-disabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." Moore v. Derwinski, 1 Vet. App. 356 (1991). The Board must consider whether the Veteran's service-connected disabilities rendered the Veteran unable to secure or follow a substantially gainful occupation. The Court has held that the central inquiry in determining whether a Veteran is entitled to a total rating based on individual unemployability is whether service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Marginal employment is not considered substantially gainful employment and is deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census (Census), as the poverty threshold for one person. Marginal employment also may be held to exist on a facts-found basis when earned annual income exceeds the poverty threshold. Such situations may include, but are not limited to, employment in a protected environment such as a family business or sheltered workshop. 38 C.F.R. § 4.16(a); see Ortiz-Valles v. McDonald, 28 Vet. App. 65 (2016); Cantrell v. Shulkin, 28 Vet. App. 382 (2017). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. From September 9, 2003 the Veteran is rated at a 70 percent for PTSD and is his only service-connected disability. From February 17, 2006, the Veteran's combined evaluation is 80 percent with the 70 percent evaluation for PTSD, diabetes mellitus rated at 10 percent, and tinnitus rated at 10 percent. He has a combined 60 percent evaluation from March 19, 2008 with a 50 percent evaluation for PTSD, 10 percent evaluation for diabetes mellitus, and 10 percent evaluation for tinnitus. From June 18, 2012, the Veteran's combined evaluation is 80 percent with a 70 percent for PTSD, 10 percent for diabetes mellitus, and 10 percent for tinnitus. Therefore, the Veteran meets the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a) from September 9, 2003 to March 18, 2008 and from June 18, 2012 to March 27, 2013. As the Veteran has only a 60 percent combined evaluation from March 19, 2008 to June 17, 2012, the Board must consider entitlement to a TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b) for this period. The Veteran submitted a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability in February 2011. The Veteran indicated he last worked in 1997 and completed two years of college. The Veteran submitted another VA Form 21-8940 in December 2015 in which he indicated that he worked as a self-employed carpenter from August 2002 to April 2004 and his highest gross earnings was $2,200 per month. He also listed working as a carpenter for a home service company from May 2005 to September 2006 and his highest gross earnings per month was $2,800. The Veteran noted he left his last job because of his disability. The August 2018 Board decision remanded the issue of entitlement to a TDIU on an extraschedular basis, from March 19, 2008 to June 17, 2012 for referral to the VA's Director of Compensation Service for initial consideration. The Board also remanded the claim to address whether the Veteran's sporadic work as a self-employed carpenter for the entire period prior to August 1, 2016, constituted substantially gainful employment or was marginal employment. The Board found that the evidence of record did not contain enough information to adequately determine the nature of his employment as a carpenter and remanded the matter. Subsequently, in April 2019 and October 2019, the RO sent the Veteran correspondence requesting detailed information regarding his employment as a carpenter and income history for the years in which he was precluded from maintaining gainful employment. In January 2020, the Veteran did not provide the requested information regarding his employment but informed the VA that he wished to withdraw his claim for a TDIU prior to August 1, 2016. The RO informed him that the withdrawal must be made in writing pursuant to 38 C.F.R. § 20.204, but the Veteran did not submit a written request to withdraw the claim. The January 2021 Board decision found that the Veteran's claim was still on appeal as he did not submit his request for a withdrawal in writing. The Board remanded the matter for a TDIU opinion and referral to the Director of Compensation Services for an extraschedular opinion. In a March 2021 advisory opinion, the Director of Compensation Service found that the Veteran last worked in 2006 doing carpentry work but fell off a roof and injured his foot. The Director conceded that although the Veteran's service-connected conditions do cause functional limitations, the preponderance of the evidence does not show that the Veteran is unable to obtain or maintain gainful employment due to his service-connected conditions and therefore, entitlement to extraschedular TDIU benefits is not established. Social Security Administration (SSA) records show that the Veteran received benefits for PTSD. The Board is not bound by decisions of other agencies, but here, it is probative evidence that the Veteran is not able to work due to his psychiatric disability. The Veteran reported that he became unable to work because of his condition in April 2004 but indicated that he is still working on and off as a carpenter. The Functional Capacity Assessment found that the Veteran's ability to engage in work-related activities is significantly limited and the alleged onset date of March 2006 is reasonable since the Veteran indicated worsening of PTSD within the past year. The Veteran also reported that he works eight hours per day, five days a week and earned $300 per month. The Veteran was afforded a VA PTSD examination in October 2003. The Veteran reported that he is self-employed, trying to run his own home improvement business doing carpentry but stated he has had no work for the last three months. He stated he was unable to obtain jobs and he has also been feeling that his equilibrium is off which he attributes to his psychiatric medication, which he felt limits his ability to work. In a January 2004 VA treatment record, the Veteran reported that his remodeling work dried up around September, and he had worked little since that time. In November 2004, the Veteran stated that he is working here and there doing odd jobs such as painting houses. The Veteran was examined again for his PTSD in February 2007. The Veteran stated that he is currently working as a painter and floor tile setter. He has done this work since 2001 and is self-employed. The Veteran also reported that he tends to stay in a shell, because of problems with anger management. He has tried numerous medications but had poor response to all of them and all of them have made him feel tired or foggy the next day and this interferes with his work. Upon examination, the Veteran's main complaint was that he had impaired impulse control in the form of irritability and quick temper. This does not affect his motivation, but it does cause him to stay alone and work alone, and it is disappointing to him and depressing, because it affects his marriage and he thinks his wife has had about enough. The Veteran's concentration was impaired. He was able to do serial 3s, but completely unable to do serial 7s, and he will not even attempt to spell "world" backwards. He does report suspiciousness. The examiner noted that he does demonstrate behaviour and social and affective symptoms of PTSD. The examiner also indicated the Veteran has no difficulty performing activities of daily living, but has difficulty establishing and maintaining effective work and social relationships. He has difficulty maintaining family role functions. He is unable to perform recreational or leisurely pursuits. The Veteran reported that he is a retired carpenter but still works on jobs occasionally. See August 2007 VA treatment record. In a November 2007 VA treatment record, the Veteran reported that he frequently feels angry, hostile and has difficulty controlling his temper. He also endorsed an inability to tolerate group activities. The Veteran underwent a psychiatric evaluation by Dr. H.C. in March 2007. The examiner found that the Veteran showed avoidance behavior in terms of being isolated and withdrawn from others. He is easily startled by loud unexpected noises and is quick tempered. He has hypervigilance and has difficulty with concentration. He has moderate depression. He is able to enjoy music but has no close friends. His anxiety level is described as "very high." The examiner noted that he is self-employed now as a carpenter but has not found any work. The physician stated that his concentration is poor. His ability to handle stress is poor. The Veteran reported that he feels he has been a bit worse in the last year because his PTSD symptoms seem to be worsening. The Veteran underwent a VA PTSD examination in June 2008. The Veteran reported that he continues to be a self-employed carpenter and has been in this line of work for the past approximately thirty years. The Veteran stated that he does not really have friends because he is a loner. He described problems with irritability with his wife and on occasion, at work. He reported that he is able to maintain work as a self-employed carpenter. He also reported that he has a lack of social support group. In a January 2012 VA treatment record, the Veteran reported that he has a problem with anger management. He is taking classes at school but not doing well. He is also depressed. He was again examined by the VA for PTSD in April 2012. The Veteran was currently in college and he has been retired for almost two years. He reported depressed mood daily, with increased problems getting to sleep and trouble staying asleep, low energy or fatigue, low self-esteem, hopelessness, and increased concentration problems. The Veteran also stated that he is isolated but does go to school. He is having trouble in school with learning and getting his work finished and has dropped down to one class. He stated he does not get along well with his family. The VA examiner found that it is as likely as not that the PTSD medication contributed to occupational problems in that he reports he was taking Trazadone for PTSD sleep problems while working. He fell off a roof and did not react as quickly as he normally would have. The examiner also stated that he was mostly self-employed because he did not get along with others and would be critical of them and have a "demanding tone." He feels detached and estranged from others and has restricted range of affect. In June 2012, the Veteran was afforded another VA PTSD examination. The Veteran had symptoms of difficulty falling or staying asleep, irritability or outbursts of anger, difficulty concentrating, hypervigilance, exaggerated startle response. He also had symptoms of depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or worklike setting, inability to establish and maintain effective relationships, and impaired impulse control, such as unprovoked irritability with periods of violence. In May 2017, a VA opinion was obtained regarding the Veteran's individual unemployability. The VA examiner found that the Veteran's unemployability from September 9, 2003 to March 18, 2008 and from March 18, 2008 onward, is at least as likely as not proximately the result of his service-connected PTSD. The examiner stated that as shown in the report by Dr. H.C. in 2007, the Veteran's prognosis was determined to be guarded and represents a progression based on the VA examination from 2003. The examiner concluded that this is consistent with her examination with the Veteran who continues to have unresolved PTSD. The RO obtained a medical opinion in March 2021 to determine the functional effects of the Veteran's PTSD on his ability to work for the period prior to August 1, 2016. The VA examiner opined that after review of the Veteran's records, to include VA examinations and mental health notes, the Veteran likely as not struggled significantly from his time after Vietnam in 1970 to approximately 2000. The Veteran maintained employment full time but was a welder and carpenter which allowed him some flexibility in his schedule. The Veteran struggled with substances pretty badly and that at least as likely as not made functioning in his job and staying consistent in work more difficult. However, the Veteran managed to continue working despite these issues and retired in 2006 due to some physical issues. He reported struggling getting along with people, but again, he managed to work until approximately age sixty-two. The examiner found the symptoms that would result in difficulties with employment include: interpersonal difficulties, such as maintaining his irritability and getting along with coworkers, depression and lack of energy and motivation, anxiety, some panic, hypervigilance, sleep issues that result in difficulties staying alert and being efficient due to difficulties sleeping, memory, attention, concentration with difficulties staying focused and remembering things to do which could pose issues with job completion. Additionally, in a March 2021 VA medical opinion, the VA examiner opined that the functional impairment of the Veteran's service-connected tinnitus prior to 2016 includes difficulty with communication to include, but not limited to face to face and telephone communication. Regarding the Veteran's service-connected diabetes mellitus, the VA examiner opined in March 2021 that there is little to no impact on occupational and employment activities. The examiner noted that the Veteran had well-controlled diabetes mellitus prior to 2016. The Veteran met the schedular criteria for a TDIU beginning September 9, 2003. However, he indicated on his most recent VA Form 21-8940 from December 2015, that he last worked on September 15, 2006. As noted above, the Veteran reported earning $300 month per SSA records. However, in a February 2016 VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits, the Veteran indicated he earned $14,000 during the twelve months preceding the last date of employment of September 15, 2006. Here, the evidence indicates that the Veteran was employed on a full-time basis working forty hours a week prior to September 2006. The poverty threshold for a single person in 2006 was $10,294. See Poverty Thresholds, United States Census Bureau, https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html. The Board finds that the Veteran's annual income exceeded the poverty threshold for one person in 2006. Nevertheless, marginal employment may also be held to exist on a fact found basis, including but is not limited to employment in a protected environment such as family business or sheltered workshop, when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a). The Court has held that the term "protected environment" was ambiguous and noted that VA had declined to define the term. Although there is no standard articulated in the VA regulation (§ 4.16) as to the meaning of "protected" work, the dictionary defines the word "protect" as meaning "to maintain the status or integrity of especially through financial or legal guarantees" or "to provide a guard or shield."' See Cantrell v. Shulkin, 28 Vet. App. 382, 388-89 (2017) (finding "employment in a protected environment" is not clear from the plain language of § 4.16 and requires further definition by VA). The evidence establishes that the Veteran was working as a carpenter because he had to stay to himself and needed to work alone because being around people distracted him. His mood also caused him to stay and work alone. See February 2007 VA examination. The February 2012 VA examiner found that the Veteran was mostly self-employed because he did not get along with others and would be critical of them and have a "demanding tone." He stated at the examination that he feels detached and estranged from others and has restricted range of affect. Thus, the Board finds that although the Veteran could maintain an occupation, the only occupation he could maintain was a sheltered one. The Veteran's work from his personal business is equivalent to marginal employment. It is not "substantially gainful" employment. Given the Veteran's educational and vocational background, it appears unlikely for the Veteran to follow a substantially gainful occupation for which he may be qualified based on his service-connected disabilities. The evidence shows that the Veteran would not have been able to perform in a competitive work environment successfully. The totality of his mental health symptoms suggests that the Veteran would be significantly impeded in workplace productivity based on his psychiatric symptoms. The effects of his psychiatric disability would make it difficult for the Veteran to work alongside other coworkers and stay on task. Therefore, resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran's functional impairment caused primarily by his service-connected PTSD would preclude him from securing and following a substantially gainful occupation. The Board also finds that the Veteran's self-employment as a carpenter is employment conducted in a "protected environment," and therefore is considered "marginal" for purposes of entitlement to TDIU under 38 C.F.R. § 4.16. As such, the Board finds that the evidence is at least in equipoise as to whether the Veteran's service-connected disabilities preclude him from engaging in substantially gainful employment from September 9, 2003, the date the Veteran met the schedular requirements of a TDIU under 38 C.F.R. § 4.16(a) to March 18, 2008, and on an extraschedular basis from March 19, 2008 to June 17, 2012, and again on a schedular basis from June 18, 2012 to March 27, 2013. As a TDIU is being granted for the entire period on appeal, this is a full grant of the benefits sought on appeal. AB v. Brown, 6 Vet. App. 35 (1993). MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Kim, 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.