Citation Nr: 23041263 Decision Date: 07/27/23 Archive Date: 07/27/23 DOCKET NO. 17-23 187 DATE: July 27, 2023 ORDER Entitlement to an extraschedular total disability rating based on individual unemployability (TDIU) due to service-connected disability is granted. FINDING OF FACT The Veteran's service-connected posttraumatic stress disorder (PTSD) has prevented him from securing and maintaining a substantially gainful occupation during the entire appeal period. CONCLUSION OF LAW The criteria for entitlement to extraschedular TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant in this matter, served on active duty in the United States Army from September 1973 to October 1975. Procedural History This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision by the Department of Veterans Affairs (VA). The Agency of Original Jurisdiction (AOJ) denied the Veteran's claim in October 2014, and the Veteran timely appealed. In December 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. In August 2020, the AOJ granted the Veteran's claim for TDIU, effective July 16, 2020. The Veteran timely appealed the grant, seeking review of the effective date. In January 2023, the Board granted his claim for schedular TDIU, effective April 27, 2017, and remanded the issue of entitlement to an extraschedular TDIU for referral to the Director of Compensation Service. The Director denied the claim in April 2023. Thus, the Board finds there has been substantial compliance with its remand directives pursuant to Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the Board has jurisdiction to proceed to adjudicate the issue of entitlement to an extraschedular TDIU on the merits. TDIU may be assigned when the veteran is unable to secure or follow substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. A 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. In order to meet the schedular criteria for entitlement, the veteran must have either: (i) one disability rated at 60 percent or more; or (ii) two or more disabilities, with at least one disability rated at 40 percent or more and sufficient additional disability bringing the combined rating to at least 70 percent. 38 C.F.R. § 4.16(a). However, where a veteran is unemployable by reason of service-connected disabilities, but fails to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), TDIU can be granted on an extraschedular basis after referral to the Director of Compensation Service. 38 C.F.R. § 4.16(b). It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Here, the appeal period began on January 3, 2014, when the VA received the Veteran's claim for entitlement to TDIU. Entitlement to TDIU was established effective April 27, 2017, when the Veteran's service-connected disability first met the schedular requirements for TDIU. See January 2023 BVA Decision. For clarity, the Board notes that he is currently service-connected for PTSD at 50 percent from July 10, 2010, and at 70 percent from April 27, 2017. Id. The Board previously referred this matter to the Director of Compensation Service for consideration of extraschedular TDIU. Despite the AOJ's recommendation that extraschedular TDIU be granted effective January 3, 2014 (see March 2023 VA Memo), the Director, in an advisory opinion, denied entitlement to extraschedular TDIU. See April 2023 VA Memo. Thus, the Board may now consider whether extraschedular entitlement is warranted. The Veteran has a history of employment as a laborer; he reported that he has an 11th-grade education with no additional occupational or vocational training. The Veteran reported that he last worked in June 2008 as a farmhand. The Veteran received a VA examination for Individual Unemployability in July 2020, in which the examiner opined as to the Veteran's difficulties in securing and following employment due specifically to his PTSD. See July 2020 C&P Exam. The examiner stated that the Veteran's difficulties included: maintaining concentration and focus on work over a period of time, skipping from one task to another without completing the prior task; having intrusive thoughts which interfered with his ability to stay focused on tasks; accepting supervision or receiving instructions without becoming angry, indicating conflicts with authority; functioning around other people, or as a team member, and feeling uncomfortable around others; tolerating being around people in any setting for more than a few minutes; suffering from sleep disruption resulting in fatigue at work, negatively affecting concentration and focus; depression resulting in inability to sustain energy and motivation to complete work assignments. Id. Although this examination was performed after the time period under consideration, the findings are still relevant to the Veteran's work history. In a July 2014 examination for PTSD, the examiner noted that the Veteran had more than 20 jobs in the 10 years after he left active duty, finding that he had difficulty with authority and that he was drinking heavily. July 2020 C&P Exam (DBQ). He worked intermittently, walking off the job most of the time without notice, usually because he resented being given orders. He then served 15 years in prison. After his release, he again worked intermittently, again becoming angry and leaving his job when encountering difficulty with supervisors. In sum, the examiner stated, "The veteran has a history of leaving multiple jobs after a few months of good performance, primarily due to difficulties dealing with authority figures. This has occurred despite continued sobriety and despite performing very well in his jobs and being promoted; he has repeatedly walked off of jobs due to inability to deal with figures in authority." Id. The Veteran was deemed disabled by the Social Security Administration (SSA), due primarily to his non-service-connected back condition; however, a mental health assessment was provided in September 2010, noting symptoms of PTSD. In his SSA filings, the Veteran reported difficulty with authority figures and being around others. After considering the evidence of record, the Board finds that the Veteran has had significant occupational impairment throughout the entire appeal period, rendering him unable to secure and follow a substantially gainful occupation due to his service-connected PTSD. The Board acknowledges that the Director of Compensation Service reviewed the claim file and found that a grant of extraschedular TDIU was not warranted. However, for all the reasons discussed herein, the Board disagrees. While the Veteran's history indicates he can obtain jobs and has been able to be promoted, he was unable to maintain those positions due to conflicts with authority figures. The fact he reported such difficulties to SSA in 2010, long before filing his TDIU claim, lends additional credibility to his statements. While it was apparently a nonservice-connected back condition that lead to him leaving his last job, the focus of the claim is whether the PTSD would prevent him from obtaining or maintaining a job during the time period in question, which is January 2014 until August 2017. In other words, the reason he left his job in 2008 is not relevant to the issue at hand, but the occupational history of inability to maintain various jobs over the course of several years due to difficulties with authority figures is persuasive evidence in favor of the claim. Thus, the Board finds that extraschedular TDIU is warranted during the entire appeal period, from January 3, 2014, and grants the Veteran's claim. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Carla Labunski 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.