Citation Nr: 22018695 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 16-60 044 DATE: March 30, 2022 REMANDED 1. Entitlement to an increased disability rating for posttraumatic stress disorder (PTSD) in excess of 30 percent prior to June 2, 2021 is remanded. 2. Entitlement to a total disability rating for compensation based on individual unemployability due to service connected disabilities (TDIU) on an extraschedular basis is remanded for referral to the Director of Compensation Service. REASONS FOR REMAND The Veteran served on active duty in the Army from November 2001 to November 2004. In May 2021, the Veteran testified at a virtual Board of Veterans' Appeals (Board) hearing before the undersigned Veterans Law Judge. These matters are on appeal of a December 2015 rating decision that granted service connection for PTSD. In a July 2021 rating decision, the Veteran was granted a maximum rating of 100 percent for his PTSD as of June 2, 2021. Therefore, the relevant period relating to the Veteran's increased rating claim herein in is prior to June 2, 2021. These matters were remanded by the Board in November 2021 in order to obtain any outstanding private medical records relating to the Veteran's PTSD. The Veteran was provided a VA Form 21-4142 Authorization for Release of Information, which the Veteran returned but which did not indicate any private treatment providers. In a phone call with VA in December 2021, the Veteran stated that he had met with a private provider on only one occasion but did not pursue further treatment and, therefore, no private treatment records are available. Accordingly, there has been substantial compliance with the remand directives and the matter is again before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Increased rating for PTSD prior to June 2, 2021 VA treatment records prior to the Veteran filing a claim for psychiatric disorder indicate the Veteran to have a history of personality disorder. While the Veteran has been evaluated, and is service connected for PTSD, the record does not show that VA examiners have evaluated the Veteran for a personality disorder. Given the Veteran's mental health history, it appears that a personality disorder may contribute to the Veteran's psychiatric symptoms, and impact his overall functioning. However, the Veteran's VA psychological examinations to date have not addressed the Veteran's history of personality disorder. Such consideration would be relevant to the Veteran's increased rating claim prior to June 2, 2021. Accordingly, remand is warranted in order to obtain a VA examination with psychological testing that addresses whether or not the Veteran has a personality disorder and for the examiner to address whether the Veteran's symptoms can be differentiated from the service-connected PTSD. 2. TDIU Total disability will be considered to exist where there is present any impairment of mind and body that 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 because of service connected disabilities, provided that the Veteran meets the schedular requirements. Specifically, if there is only one such disability, the disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and enough additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). As a preliminary matter, the Veteran's service connected disabilities did not meet the percentage requirements for a schedular TDIU under 38 C.F.R. § 4.16(a) prior to June 2, 2021. Prior to that date, the Veteran was service connected for PTSD with a 30 percent disability rating from to June 18, 2014, and a scar of the right skull with a noncompensable disability rating from June 18, 2014. Thus, the Veteran had a combined disability rating of 30 percent prior to June 2, 2021. In a July 2021 rating decision, the Veteran was granted a 100 percent disability rating for PTSD effective June 2, 2021. Thus, the Veteran has only met the schedular criteria for TDIU consideration from June 2, 2021. The Veteran has a 100 percent combined disability rating from June 2, 2021. The Board notes that a grant of a 100 percent schedular rating does not necessarily render the issue of entitlement to a TDIU rating moot, as a TDIU rating could, in certain circumstances, render the Veteran eligible for special monthly compensation (SMC). SMC may be warranted if the Veteran has a 100 percent disabling rating for a single disability, and VA finds that a TDIU rating is warranted based solely on disabilities other than the disability that is rated at 100 percent. See Buie v. Shinseki, 24 Vet. App. 242 (2011); Bradley v. Peake, 22 Vet. App. 280 (2008). However, while the Veteran's PTSD has a 100 percent disability rating, the Board notes that the Veteran's scar of the skull is rated at a noncompensable level and there is no competent evidence to suggest that the Veteran's scar disability alone renders the Veteran unable to secure or follow substantially gainful employment, and the Veteran has made no such allegation. Rather, the evidence of record indicates that the Veteran has obtained substantially gainful employment since the onset of his 100 percent combined disability rating, and was offered a job as a Contract Compliance Specialist with Bartech Staffing, earning 31 dollars per hour with a proposed start date of December 20, 2021. Hence, the Board finds as fact that entitlement to a TDIU rating is moot for the period beginning on June 2, 2021. As to the period prior to June 2, 2021, when the percentage requirements for TDIU consideration hare not met, entitlement to a TDIU rating may be considered on an extraschedular basis when the Veteran is unable to secure or follow a substantially gainful occupation by reason of service connected disabilities. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. See Bowling v. Principi, 15 Vet. App. 1 (2001). However, it may determine whether the Veteran is unable to secure or follow a substantially gainful occupation by reason of service connected disabilities, and then refer the issue to the Director of the Compensation Service (Director), for a determination in the first instance as to whether the Veteran is entitled to a TDIU rating on an extraschedular basis under 38 C.F.R. § 4.16(b). Pursuant to Ray v. Wilkie, 31 Vet. App. 58, 66 (2019), the U.S. Court of Appeals for Veterans Claims held that when denying an extraschedular TDIU referral to the Director under 38 C.F.R. § 4.16(b), the Board must make two determinations in its decision: (1) that there is not sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable due to service connected disabilities; and (2) that TDIU benefits are not warranted because the veteran is not unable to obtain and sustain financially gainful employment due to service connected disabilities. In the present matter, there is sufficient evidence to substantiate a reasonable possibility that the Veteran is unemployable due to service-connected disabilities. Records indicate that the Veteran's participation in VA's vocational rehabilitation program was discontinued in April 2021 due to unsatisfactory conduct or cooperation. A discontinuance statement reflects problematic behavior that may be associated with symptoms of the Veteran's PTSD, including notation of "threatening violence, anger outbursts, and disruptive behavior on campus at WVU involving staff and instructors, which led to academic restriction / suspension from campus." A July 2021 VA examiner found the Veteran's PTSD to cause a significant level of impairment both occupational and socially and the examiner's report cited to some evidence prior to June 2, 2021. The examiner stated that the Veteran's "PTSD has created obstacles for him in school, in working with doctors to receive medical treatment, and to obtain gainful employment." This raises a reasonable possibility that the Veteran may have been unemployable due to service connected disabilities prior to June 2, 2021. Accordingly, referral to the Director is warranted for extraschedular TDIU consideration. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the current psychiatric disorder(s), to include any personality disorder. The examiner should review the Veteran's claims file. The Veteran should be given the Minnesota Multiphasic Personality Inventory (MMPI) test. Any other psychological testing deemed warranted by the examiner should also be conducted. The agency of original jurisdiction is asked to provide the examiner a copy of the below facts. In order to assist the VA examiner with his or her review of the record, the Board invites the examiner's attention to the following facts: The Veteran served on active duty in the Army from November 2001 to November 2004. The Veteran is service connected for PTSD. A February 2011 VA mental health record shows that the examiner wrote, "History of PTSD positive screening, diagnosis of narcissistic personality disorder, impulse control disorder in remote data as well." See VBMS entry with document type, "CAPRI," with "#1" in the subject line, receipt date 06/29/2016, p. 133. The Veteran underwent a VA examination for assessment of PTSD in December 2015. The Veteran was diagnosed with PTSD and no mention of a personality disorder was made; however, the Veteran did not undergo testing for such a condition and the assessment was largely based on the Veteran's self-reporting his symptoms. See VBMS entry with document type, "C&P Exam," receipt date 12/22/2015. The Veteran underwent another VA psychological examination in July 2021. The Veteran was diagnosed with PTSD, persistent depressive disorder, generalized anxiety disorder, and insomnia disorder. Again, no mention of a personality disorder was made and psychological testing was not performed to establish the presence of this condition. See VBMS entry with document type, "C&P Exam," with "#1" in the subject field, receipt date 07/02/2021. The Board has previously made a negative credibility finding against the Veteran in a November 2021 decision. This finding was based on the Veteran submitting a falsified record of his DD Form 214, Certificate of Release or Discharge from Active Duty, to the Board, which misrepresented his period of active duty, where he made it appear as though he had four years of active duty versus three. The falsified document also wrongly stated that the Veteran was in receipt of a Purple Heart, Bronze Star, and Meritorious Service Medal. He did not receive these awards. Additionally, a December 2015 VA examiner documented that the Veteran made several statements that were inconsistent with the terms of his service. During this examination, the Veteran reported that he served three, separate tours of duty overseas in Iraq. The examiner also noted that that the Veteran had reported being in the Army from 2001 to 2006 and being deployed to Afghanistan, Africa, South American, and Iraq as a paratrooper in a special operations unit, and that he received the Purple Heart. However, the Veteran's military personnel files confirm that the Veteran served one tour overseas, in Iraq only, from March to July of 2003, prior to his 2004 discharge. The examiner noted that the record does not indicate that the Veteran was a paratrooper or part of a special forces unit, or that the Veteran received the Purple Heart. Two months after this VA examination, the Veteran submitted the fraudulent DD Form 214 discussed above, seeking to corroborate his false claims. See VBMS entry with document type, "BVA Decision," receipt date 11/01/2021, pp. 7-8. The examiner's review of the record is NOT restricted to the evidence listed below. This list is provided to assist the examiner in locating potentially relevant evidence. Based upon a review of the relevant evidence, lay and medical history, and sound medical principles, the VA examiner is asked to answer the following: (a) Identify and diagnose any current psychiatric disorder, pursuant to the DSM-5 criteria. The examiner is specifically asked to discuss whether the Veteran has a current personality disorder. (b) If the Veteran has been diagnosed with a personality disorder, the examiner is asked if the symptoms of the Veteran's personality disorder can be distinguished from symptoms attributable to the service-connected PTSD. The examiner must provide a rationale for each opinion given. If the examiner is unable to provide an opinion without resorting to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. 2. Refer the Veteran's TDIU claim to the Director, Compensation Service, for extraschedular consideration of entitlement to a TDIU under the provisions of 38 C.F.R. § 4.16(b) prior to June 2, 2021. A copy of the Director's decision on this claim must be included in the claims file. The Director is put on notice that the record shows that the Veteran has obtained substantially gainful employment since the Veteran's TDIU claim was raised. VRE Correspondence from December 2021 indicates that the Veteran acquired a job as a Contract Compliance Specialist with Bartech Staffing, earning 31 dollars per hour with a proposed start date of December 20, 2021. See VBMS entry with document type, "VRE Correspondence," receipt date 12/16/2021. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Wonderling, 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.