Citation Nr: 21042412 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 16-58 661 DATE: July 13, 2021 ORDER Entitlement to a total rating based on individual unemployability due to service connected disability (TDIU) on an extraschedular basis is granted. FINDING OF FACT The Veteran's service connected adjustment disorder, his only service connected disability, renders him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1958 to April 1960. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) St. Petersburg, Florida. The Veteran and his partner testified at a virtual video conference hearing before the undersigned Veterans Law Judge (VLJ) of the Board in June 2020. A transcript of the hearing has been associated with the claims file. This case was most recently before the Board in December 2020, at which time the appeal was remanded to the Agency of Original Jurisdiction (AOJ) for further development. Specifically, the issue was remanded the claim for a TDIU to the Director of Compensation Service for extraschedular consideration pursuant to 38 C.F.R. § 4.16(b). Such consideration was completed in January 2021. The Board therefore determines that there has been substantial compliance with its previous remand. The case has now been returned to the Board for appellate action. Entitlement to an Extraschedular TDIU The Veteran seeks entitlement to a TDIU on an extraschedular basis. As noted above, this case was most recently before the Board in December 2020. At that time, the Board noted the Veteran submitted a vocational expert opinion from P.M., a certified rehabilitation counselor, who opined that the Veteran's service-connected adjustment disorder would preclude him from being able to perform essential work functions of his past work any competitive job in the national economy. See Board Decision, December 2, 2020. 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). Rating boards should submit to the Director of Compensation Service for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). See 38 C.F.R. § 4.16(b). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). An assessment of TDIU entitlement based on the combined effects of all service-connected disabilities should address all such disabilities. Therefore, the cumulative effects (functional impairment) of all service-connected disabilities should be addressed in determining if the service-connected disabilities prevent substantially gainful employment. Floore, 26 Vet. App. 376; accord Geib v. Shinseki, 733 F.3d 1350, 1353-54 (Fed. Cir. 2013). In making such a determination, the Board must determine, as a question of fact, both the weight and credibility of the evidence. Equal weight is not accorded to each piece of evidence contained in a record and every item does not have the same probative value. The Board must analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Struck v. Brown, 9 Vet. App. 145, 152 (1996); Caluza v. Brown, 7 Vet. App. 498, 506 (1995); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994); Abernathy v. Principi, 3 Vet. App. 461, 465 (1992); Simon v. Derwinski, 2 Vet. App. 621, 622 (1992); Hatlestad, 1 Vet. App. at 169. The Veteran's credibility affects the weight to be given to his or her testimony and lay statements, and it is the Board's responsibility to determine the appropriate weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). In evaluating a veteran's employability, consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The claim for a TDIU, to include as on an extraschedular basis, stems from an October 2013 claim related to his adjustment disorder. See VA Form 21-526 Veterans Application for Compensation or Pension, October 23, 2013. Specifically, an October 2018 Board decision found the claim for entitlement to a TDIU had been raised by record in relation to his currently pending increased rating claim under Rice v. Shinseki, 22 Vet. App. 447 (2009), and the issue was added for appellate consideration. Throughout the period on appeal, the Veteran was service connected for adjustment disorder rated as 30 percent disabling prior to August 7, 2017, and 50 percent disabling thereafter. This is his only service connected disability. His combined rating for compensation was 30 percent prior to August 7, 2017, and 50 percent thereafter. Thus, he does not meet the schedular criteria at any time during the period on appeal, and a TDIU on a schedular basis is not warranted. 38 C.F.R. § 4.16(a). Initially, as noted above, the Board notes that the instant appeal stems from the Veteran's October 2013 claim for an increased rating for his service-connected adjustment disorder. Throughout the period on appeal, the occupational and social impairment of his adjustment disorder has been described in sufficient detail in prior Board decision. See Board decision, October 18, 2018. The October 2018 Board decision described and discussed the pertinent medical evidence associated with the claims file as of the date of that decision, to include a February 2011 VA treatment record, a March 2014 VA examination report, a September 2014 private treatment record and an August 2018 VA examination report. The occupational and social impairment of his adjustment disorder as discussed in the October 2018 Board decision, and the relevant evidence described is incorporated herein. Turning to the evidence, of record is a September 2018 private provider opinion provided by Dr. T.D. At that time, the provider opined that the Veteran was unable to secure or maintain gainful employment and that his condition was of a permanent and total nature. In support of his claim, the Veteran submitted a VA Form 21-8940 Veteran's Application for Increased Compensation Based on Unemployability in September 2018. He indicated that his adjustment disorder prevented him from securing or following any substantially gainful occupation. He indicated that he had not worked since August 2006, and he became too disabled to work in June 2006. He reported that the most he ever earned was $18,000 in the year 2007 while working part-time and indicated he worked 40 hours per week for a national store from March 1999 to August 2006 and earned $18,000.00 in one month. The Veteran reported he earned a bachelor's degree and did not have any other education and training before he became too disabled to work. The Veteran was afforded a VA examination in February 2020. At that time, the examiner found the Veteran's adjustment disorder manifested in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress or symptoms controlled by medication. The Veteran reported he had not worked since 2007 and was presently retired. In that regard, he stated he stopped working due to cancer and cancer surgery. He described his work relationships as "good," and that he got along great with coworkers and supervisors. The Veteran reported he was presently taking psychotropic medications, which were helpful and that he had never participated in group or individual therapy or counseling. Symptoms attributable to his adjustment disorder at the February 2020 VA examination included depressed mood, anxiety and mild memory loss, such as forgetting names, directions or recent events. The examiner remarked that the Veteran would likely have frequent tardiness and/or absenteeism from work, and was prone to making careless errors, leaving tasks incomplete, and/or taking an inordinate amount of time to complete tasks due to problems. The Veteran testified at a June 2020 Board hearing before the undersigned Veterans Law Judge. He testified that he was hospitalized in 1965 for thirteen weeks due to psychiatric symptoms and that his symptoms had worsened since that time, and that he collapsed at work. The Veteran and his partner testified that he could no longer work at Wal-Mart due to psychiatric symptoms such as having a breakdown, an inability to sleep well due to working night shifts, an inability to drive, forgetting how to drive or his destination, dizzy spells, collapsing at work and physical ailments. The Veteran's wife testified that the Veteran would forget to take his medication and no longer drove. The Veteran testified he had a bachelor's degree in business administration and previously audited for a tax company to ensure tax return mistakes were corrected. Additional educational history included a fifth year of college studying church ministry. Additional occupational history included stocking shelves for a national store for seven years. At the store, the Veteran was awarded annual pay raises for good performance and he testified that he performed his job well and interacted well with customers. Prior to working at the store, the Veteran worked as a cleaner, construction for ten years, working with customers at a shopping mall, driving trucks, worked as a phosphate plant for six years, and worked with his dad as a subcontractor. At his June 2020 Board hearing, the Veteran also testified that he took medication that helped him perform at his jobs historically, and that he would maybe be permitted to operate machinery used in the past but that he was "not up to it," because he had to be willing to do the work physically and mentally. During his job as a truck driver, the Veteran testified his psychiatric symptoms did not impact his work because he was a loner anyway and did not mind being alone all night. The Veteran testified that he would not go back to work because he did not "trust it or anything," and that he was skilled in seven different areas and would have to reorient in order to return to work; and that he could not handle common labor jobs because he could not handle the work mentally and physically. An August 2020 private vocational opinion rendered by P.M., M.S., CRC., noted that the Veteran had multiple diagnoses, but for the purposes of this report, only his service-connected adjustment disorder and its effect on his employability was discussed. The provider found that the Veteran's service-connected adjustment disorder precluded him from performing the following: falling and staying asleep easily resulting in daily fatigue, controlling his emotions due to significant depressed mood and irritability, having the desire to be around others including family members, adapting to and maintaining composure in stressful situations, developing and maintaining relationships with others, remembering information and following through on tasks and concentrating and staying on task. In the August 2020 private vocational opinion, P.M. also noted that she had conducted a telephone interview with the Veteran and his partner in July 2020. At that time, the Veteran reported how his adjustment disorder and related symptoms affected him on a daily basis. The Veteran's partner indicated that the Veteran's ability to concentrate and the severity of his depression interfered with all of his jobs, with the exception of his job at the national store. The Veteran's partner further reported the Veteran was forgetful, had obvious memory issues, slowness in completing tasks, confusion, and that his concentration and memory deficits were significant. The Veteran's confirmed that the Veteran forgot how to do things that were once familiar to him, such as playing card games or performing basic tasks around the house and she reported the Veteran could not go grocery shopping. In the August 2020 private vocational opinion, P.M. noted that the Veteran reported he spent most of his time in isolation due to the current pandemic and that he felt good about isolation because he liked it "better this way." Both the Veteran and his partner indicated that his depression and anxiety were significant and helped with medication, but that he still suffered to a significant degree with a strong desire to isolate with persistent memory and concentration difficulties. The Veteran confirmed that he had disrupted sleep despite the use of sleep medication resulting in daily fatigue and continued difficulty with focus. The Veteran's partner reported the Veteran was more inefficient with daily household tasks and the Veteran indicated his lack of focus resulted in being easily frustrated and ending tasks without finishing them. The Veteran's partner reported that the Veteran was extremely forgetful, would repeat himself, and self-isolated. The Veteran stated his depression was disabling and made him "not want to do anything." He reported he was unable to handle even small amounts of stress, made careless errors and mistakes, would fall asleep when helping his partner sell makeup, and would not be productive if left alone at home. The provider noted that the Veteran would, at times, not answer questions asked or speak off topic. In her August 2020 private vocational opinion, P.M. opined the Veteran's adjustment disorder and related symptoms of concentration difficulties, anxiety, depression, irritability, and avoidant behavior, precluded the Veteran from being employed in any work setting. His limitations included daily reclusive behavior, inability to concentrate and focus well, significant increase in irritability, difficulty relating to others and controlling his emotions, interrupted sleep and daily fatigue, inability to deal with even low levels of stress and memory deficits where he was unable to recall previously familiar information. The provider opined that the Veteran's ability to be considered a reliable employee would be significantly reduced due to his near-continuous state of depression combined with severe anxiety resulting in him continuing to have inappropriate relations with others due to angry outbursts, isolation, and interference with basic hygiene. The provider noted that his lack of personal hygiene would most definitely affect his ability to be hired and maintain any employment due to his neglect of appearance. She opined that the Veteran's anger, depression, anxiety, and inability to act appropriately and respond well with others would make him unable to complete any type of work on a consistent basis. The provider noted the Veteran had a very sporadic work history that consisted of mostly short-lived jobs with the exception of his work at a national store, and all of his jobs had reportedly been terminated within a few months due to his struggles with focus and concentration. Therefore, the provider opined that with no consideration of his mental limitations, the lack of a consistently stable work history would result in fewer transferrable skills and significant limit what jobs he would qualify and be considered for. In her August 2020 private vocational opinion, P.M. further found that the Veteran's psychological treatment records showed the Veteran continued to suffer and demonstrate significant impairments from his adjustment disorder despite years of treatment. The provider cited treatment records and found that such demonstrated the Veteran's severely disabling symptoms had worsened with no expected improvement and have led to an impairment in social and occupational functioning with deficiencies in areas such as work, family relations, judgment, thinking, and mood. The provider also noted that the treatment providers opined the Veteran's psychiatric symptoms resulted in a moderate illness, but inability to function in gainful employment. The provider relied on the VA examination reports of record from March 2014, August 2018, and February 2020 to determine that the Veteran's severely disabling symptoms rendered him unable to perform all of his past positions with reliability and efficiency and she noted those symptoms had worsened over time, and that the Veteran had only held each previous job for a few months. In her August 2020 evaluation of the Veteran, P.M. found the Veteran would be unable to find and maintain gainful employment due to his reduced cognitive abilities, slower pace, interpersonal functioning, inability to manage stress, lack of persistence, lack and/or disturbed conscientiousness and motivation and reduced reliability. She opined that due to his adjustment disorder and accompanying impaired memory, irritability, anxiety, depression, and strong isolative tendency, the Veteran would not be considered a reliable employee in any work situation, regardless of the need to interact with others. She found that his psychiatric symptoms manifested in an inability to relate to or take direction from others in an inappropriate manner, take care of his person appearance and hygiene on a regular basis (especially upon experiencing a depressive state), control his emotions, keep pace or persist through tasks without overacting and giving up easily and to focus on all tasks completing them in an efficient manner. Therefore, all of these impairments made the Veteran unreliable and unproductive in his past work and precluded him from all substantial and gainful work activity. The provider opined the Veteran had been incapable of sustaining gainful and competitive employment since at least 2006 when he was no longer able to work due to his worsening depression and anxiety, and as medical documentation continued to prove the chronic, progressively worsening nature of his adjustment disorder, ultimately resulting in an occupational impairment with significantly reduced reliability and productivity. In November 2020, the Veteran's claim was referred to the Director of Compensation Service for consideration of an extraschedular TDIU pursuant to 38 C.F.R. § 4.16(b) by the Board. In January 2021, the Director of Compensation Service issued an advisory opinion and denied the claim. This opinion noted that the Veteran had a bachelor's degree with work experience as a stock clerk at a national store, and he last worked in August 2006. The Director of Compensation Service considered the lay statements; however, greater weight was given to the objective medical evidence of record. In that regard, the Veteran reported he stopped working at a national store due to his cancer surgery, a non-service-connected condition, that had good relationships with coworkers and supervisors, and the evidence did not support that the Veteran was reprimanded or lost a job opportunity due to tardiness or absenteeism that would likely occur. There was no evidence of inability to perform sedentary employment due to his service-connected adjustment disorder. Therefore, the Director of Compensation Service found that the evidence failed to support the contention that the Veteran's service-connected adjustment disorder prevented gainful employment. Accordingly, after a review of the medical and lay evidence presented in the light of the Veteran's education, training, and work history, the Board finds that the overall evidence supports the contention that his service-connected adjustment disorder prevents him from obtaining and maintaining gainful employment. The August 2020 private vocational opinion thoroughly discusses the Veteran's educational history, work history and the functional impairments relates to the Veteran's service connected adjustment disorder. Specifically, the provider found that the Veteran's psychiatric symptoms manifested in an inability to relate to or take direction from others in an inappropriate manner, take care of his person appearance and hygiene on a regular basis, control his emotions, keep pace or persist through tasks without overacting and giving up easily and to focus on all tasks completing them in an efficient manner. A February 2020 VA examiner found that the Veteran's adjustment disorder would likely evidence frequent tardiness and/or absenteeism and that he was prone to making careless errors, leaving tasks incomplete and/or taking an inordinate amount of time to complete tasks due to problems due to this condition. These findings are uncontroverted in the record. Therefore, based on the foregoing and resolving all reasonable doubt in favor of the Veteran, the Board concludes that he is unable to secure or follow a substantially gainful occupation consistent with his education and work history. As such, entitlement to TDIU is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mariah N. Sim, 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.