Citation Nr: 22010989 Decision Date: 02/25/22 Archive Date: 02/25/22 DOCKET NO. 09-34 687 DATE: February 25, 2022 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis from April 10, 2007 to December 8, 2015, is granted, subject to controlling regulations governing the payment of monetary awards. FINDING OF FACT Resolving doubt in the Veteran's favor, the Veteran is unable to secure and maintain substantially gainful employment as a result of his service-connected disability from April 10, 2007 to December 8, 2015. CONCLUSION OF LAW From April 10, 2007 to December 8, 2015, the criteria for TDIU due to service-connected disability on an extraschedular basis have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.340, 4.15, 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1967 to December 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the St. Petersburg, Florida, Department of Veterans Affairs (VA) Regional Office (RO). In September 2020, the record reflects that a letter was sent to the Veteran indicating that he could request a virtual tele-hearing instead of waiting for a travel board hearing. Upon further review, the record does not contain a pending hearing request. The Veteran provided testimony in a November 2011 hearing with a Veterans Law Judge. A transcript of that testimony is in the record and has been considered in making this decision. The November 2011 Board hearing was before a Veterans Law Judge who is no longer employed by the Board; however, in December 2014, the Veteran declined the opportunity for a new hearing. The Veteran's claim for entitlement to TDIU was denied by the Board in a March 2015 decision. The Veteran appealed this denial to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a November 2015 Joint Motion for Remand (JMR) the Court vacated the March 2015 Board decision and remanded the appeal to the Board for compliance with the JMR. In September 2017 and November 2020, the Board remanded the matter for additional development necessary to ensure compliance with the terms of the JMR. In November 2020 the Board granted entitlement to TDIU on a schedular basis from December 9, 2015. Entitlement to TDIU on an extraschedular basis from April 10, 2007 to December 8, 2015. 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. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341(a). Marginal employment will not be considered substantially gainful employment and will be deemed to exist when a veteran's earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16 (a). If the schedular rating is less than total, a total rating can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that he/she has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16(a). If not, all veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). If 4.16(a) is not met, the case will be referred to the Director of the Compensation Service, for extraschedular consideration of all veterans who are unemployable by reason of service-connected disabilities. Id. The Veteran's claim of entitlement to TDIU was received on April 10, 2008. The effective date for an increased rating for disability compensation will be the date entitlement arose, the earliest date as of which it is factually ascertainable that an increase in disability occurred if a claim is received within one year from such date, or the date of receipt of the claim, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(o); Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). A TDIU claim is a claim for increased compensation; therefore, the effective date rules for increased compensation apply to a TDIU claim. See Hurd v. West, 13 Vet. App. 449 (2000). Thus, the period on appeal currently before the Board is entitlement to TDIU from April 10, 2007 to December 8, 2015. The Veteran is service connected for the following disabilities: posttraumatic stress disorder (PTSD) rated 30 percent disabling from June 24, 2003, and 50 percent disabling from April 10, 2008; and sleep apnea rated 50 percent disabling from December 9, 2015. Service connection (and a separate 50 percent rating) for sleep apnea associated with PTSD was not in effect prior to December 9, 2015. The Veteran had a combined rating of 30 percent from June 24, 2003, 50 percent from April 10, 2008, and 80 percent from December 9, 2015. Thus, as the rating for the Veteran's single service-connected disability prior to December 9, 2015, PTSD, was less than 60 percent; the schedular criteria was not met for this period, and he does not qualify for consideration of TDIU on a schedular basis. On the April 2008 VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability, the Veteran contends that his PTSD has prevented him from obtaining or maintaining gainful employment since he became too disabled to work in February 2005. He indicated that he had one year of education and worked on a river boat in multiple capacities ranging from cook to captain. Records from the Social Security Administration indicate that the Veteran has been unemployed since 2005. Vocational Rehabilitation and Employment records in March 2009 show that the Veteran was employed for approximately 30 years working on river boats. His last period of employment was with Canal Barge Line Inc from 2003-2005 where he worked as a captain. In a March 2009 assessment the examiner stated that the Veteran through his own report "does not believe that he will be able to work on a full time or part time basis." "It is apparent to this evaluator that this individual has a severe employment handicap and will likely not benefit from Chapter 31 training and employment services. Thus, it is believed that he is not feasible for full time or part time employment." The examiner noted that the Veteran has been unemployed since 2005 when he was no longer able to perform his duties as a river boat captain. The Veteran was afforded a VA PTSD examination in September 2008, the examiner opined that the Veteran had occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. However, the examiner also found that the Veteran had symptoms of irritability and hypervigilance. On VA PTSD examination in August 2009 while the examiner opined that PTSD could cause occasional decrease in work efficiency if the Veteran were employed, the examiner also found that the Veteran's symptoms included impaired memory, avoidance, detachment, irritability, difficulty concentrating, and hypervigilance. On VA PTSD examination in July 2012, the examiner opined that the Veteran had 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 examiner also found that symptoms included detachment, irritability, hypervigilance, clinically significant distress or impairment in social, occupational or other important areas of functioning. A May 2017 private psychiatric examination shows that the Veteran "has been fully disabled and unable to work since February 2005 due to PTSD." The examiner noted that while there have been several reports from VA suggesting that if the Veteran was working, he would be only intermittently or less than fully impaired by his symptoms, the private examiner opined that this is not consistent with his complete failure to maintain job performance at his career of many years. The examiner stated that despite the Veteran's years of experience, he could not work safely and caused several accidents, placing others at risk. He had a history of conflicts with his coworkers and his temper while working was noted. The private examiner opined that the Veteran's PTSD symptoms and related disorders have impacted him in all domains of his life including his continued personal struggles to maintain relationships with others despite his irritability and isolation, and difficulties with basic functioning at home. In a June 2020 private psychiatric report, based on review of the record and interview of the Veteran, the examiner stated that the Veteran "had many employers after his active-duty service and often struggled in occupational settings due to irritability, anger and inappropriate behavior. The (V)eteran experienced a steady decline in his capacity to engage occupationally and socially over time from the point of his active duty service going forward." The examiner continued to state that the Veteran "relied on alcohol use, social isolation, irritability, and anger which over the long-term served to potentiate his PTSD, worsening his overall functionality. The (V)eteran's symptoms are well described in the medical record." In conclusion the examiner stated that the Veteran "has severe, pervasive, and intractable symptoms of psychiatric illness, rendering him incapable of functioning in a modern occupational environment since at least 2005." In a January 2021 extraschedular opinion from the Director of the Compensation Service, it was noted that the decision evaluated whether the Veteran, due to his service-connected disabilities, was incapable of performing the physical and mental acts required by employment. It was found that there was no evidence of inability to perform all types of employment due to service-connected disabilities prior to December 9, 2015. Upon review of the evidence summarized above, the Board finds that from April 10, 2007 to December 8, 2015, the evidence is at least in equipoise as to the question of whether TDIU may be assigned. The Board recognizes that there are unfavorable VA opinions in September 2008, August 2009, and July 2012 along with an unfavorable opinion in January 2021 from the Director of the Compensation Service, however there are favorable private opinions in May 2017 and June 2020. Moreover, and of significant import, the unfavorable opinions show the Veteran's symptoms included irritability, hypervigilance, avoidance, and difficulty concentrating, which are consistent with the favorable opinions of record. Resolving all doubt in the Veteran's favor, the Board finds that the evidence is at least in equipoise to support the grant of entitlement to TDIU on an extraschedular basis from April 10, 2007 to December 8, 2015. Thus the Board finds that the evidence is in equipoise under 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 and TDIU is granted on an extraschedular basis from April 10, 2007 to December 8, 2015. Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Mac, 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.