Citation Nr: 23045367 Decision Date: 08/15/23 Archive Date: 08/15/23 DOCKET NO. 13-26 631 DATE: August 15, 2023 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from March 31, 2010, to May 22, 2012, on an extraschedular basis is granted. FINDING OF FACT There is persuasive evidence that the Veteran's service-connected PTSD precluded him from securing or maintaining a substantially gainful occupation from March 31, 2010, to May 22, 2012. CONCLUSION OF LAW The criteria for entitlement to a TDIU rating from March 31, 2010, to May 22, 2012, on an extraschedular basis, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1969 to January 1972. The Veteran is currently in receipt of an award of TDIU since May 22, 2012. The issue of entitlement to a TDIU rating prior to May 22, 2012, is currently at issue as part of the March 31, 2010, claim for an increased rating for PTSD. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009); see also AB v. Brown, 6 Vet. App. 35, 38-39 (1993). Entitlement to a total rating must be based solely on the impact of a veteran's service-connected disabilities on his ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the veteran's service connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Individual unemployability must be determined without regard to any nonservice-connected disabilities or a veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). For a veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which places him in a different position than other veterans with the same disability rating. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough to prove unemployability. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. Thus, the Board must evaluate whether there are circumstances in a veteran's case, apart from any non-service-connected conditions and advancing age, which would justify a total disability rating based upon individual unemployability. 38 C.F.R. §§ 3.341(a), 4.16(a), 4.19. See Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). A veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Whenever there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b). Total disability ratings for compensation based on individual unemployability may be assigned where the scheduler rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Where these percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service- connected disabilities. 38 C.F.R. § 4.16(b). In a December 2022 memorandum, the Director of Compensation Services denied the Veteran's claim for a TDIU rating on an extraschedular basis. As the Board is not bound by the opinion of the Director, it must conduct a de novo review of the issue of an extraschedular award of TDIU prior to May 22, 2012. Wages v. Shinseki, 27 Vet. App. 233 (2015). In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the U.S. Court of Veterans Appeals (now the U.S. Court of Appeals for Veterans Claims) (CAVC) discussed the meaning of "substantially gainful employment." In this context, it noted the following standard announced by the United States Federal Court of Appeals in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): It is clear that the claimant need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. CAVC has defined being unable to secure and follow a substantially gainful occupation as having an 1) an economic component of earning more than marginal income (outside of a protected environment as determined by the U.S. Department of Commerce as the poverty threshold for one person and 2) a non-economic component of the individuals ability to secure or follow that type of employment; factors to consider include: the Veteran's history, education, skill, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Ray v. Wilkie, 31 Vet. App. 58, 62 (2019). Factors that may be relevant include, but are not limited to, the Veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and whether the Veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity.) Prior to May 22, 2012, the Veteran is service-connected for PTSD rated as 50 percent disabling. Therefore, prior to May 22, 2012, the Veteran does not meet the schedular criteria for a TDIU rating. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). According to the Veteran's March 2021 TDIU application, he became too disabled to work due to service-connected PTSD on January 1, 2010. From March 1972 to January 2010, the Veteran worked as a mechanic for Dupont. Id. He completed a two-year Associate's degree in industrial maintenance technology. See June 2022 Private Evaluation; August 2023 Vocational Assessment. The claims file contains some conflicting evidence regarding whether the Veteran's service-connected PTSD from precluded him from securing or maintaining a substantially gainful occupation from March 31, 2010, to May 22, 2012. During an August 2010 VA examination, the Veteran reported that he was unemployed due to thoracolumbar spine issues and denied that his unemployment was "primarily" due to PTSD symptomology. The claims file does reflect that the Veteran's PTSD symptoms worsened prior to May 22, 2012. During an August 2011 VA examination, the Veteran reported that "his symptoms have gotten worse since he stopped working." Additionally, February 2011 VA treatment records reflect a significant increase in PTSD symptoms since retirement. By contrast, June 2011 VA treatment records reflect that the Veteran reported PTSD symptoms remained at a "decreased level." The claims file contains a May 22, 2012, private psychiatric evaluation, which coincides with the date of the Veteran's PTSD rating increase to 70 percent disabled and the grant of entitlement to a schedular TDIU rating. The private physician examined the Veteran and determined the following: Because of this service connected PTSD, [the Veteran] is severely compromised in his ability to sustain social relationships and he is unable to sustain work relationships. Therefore, I consider him to be permanently and totally disabled and unemployable. Based solely on this report, the Board cannot determine, and the private physician did not articulate, at what point in time the Veteran's PTSD symptomology became so severe. The Veteran underwent a January 2021 private psychiatric evaluation and reported his PTSD symptomology, including paranoia, anger, and hypervigilance, increased "to an extraordinary high level" from 2010, causing him to withdraw from social interactions and causing the end of his first marriage. The private psychiatrist provided the following opinion: This included using his work as a mechanic at DuPont as a way to manage his PTSD symptoms. However, due to his back condition, he was forced to stop working, thereby losing one of his primary coping mechanism (sic) and causing his mental illness to worsen significantly and become independently disabling.... Therefore, it is my professional opinion that PTSD alone has prevented the [V]eteran from working in any significant capacity since January 2010. The Veteran also underwent a June 2022 private psychiatric evaluation. The private psychiatrist reviewed the Veteran's claims file, interview the Veteran, and noted that the Veteran reported increasing PTSD symptomology during a July 2010 primary care visit. The June 2022 private psychiatrist determined that the Veteran's "severe PTSD symptoms have rendered him totally disabled and unable to work in any capacity since at least January 2010. Most recently, the Veteran underwent an August 2023 private vocational assessment. The private examiner reviewed the Veteran's claims file and interviewed the Veteran. The private examiner described the Veteran's PTSD symptomology since January 2010, opining that, while the Veteran's thoracolumbar spine disability contributed to his decision to leave the work force, his PTSD symptomology alone prevented him for being able to return to work. The private examiner did note the Veteran's participation in intermittent volunteer work for Vietnam Veterans of America but opined that this activity was not indicative of the Veteran's ability to secure and follow substantially gainful employment. The examiner opined that the volunteer work is less taxing than gainful employment, and the Veteran can discontinue the activity or adjust his schedule as necessary. Based on the examiner's extensive review of the Veteran's medical records, the examiner determined the Veteran's PTSD symptomology alone rendered him unemployable since at least January 2010. As noted above, entitlement to a TDIU rating is at issue as part of the March 31, 2010, claim for an increased rating for PTSD. The Veteran is currently in receipt of a TDIU rating since May 22, 2012. The claims file contains evidence that the Veteran last worked in January 2010, retiring from his job because of nonservice-connected thoracolumbar spine issues. Based on reviews of the Veteran's medical history and interviews of the Veteran, however, the January 2021, June 2022, and August 2023 private examiners have determined that the Veteran's PTSD symptomology alone, which increased upon his retirement, precluded him from securing or maintaining a substantially gainful occupation. The Board finds these medical evaluations to be persuasive. Entitlement to a TDIU rating on an extraschedular basis from March 31, 2010, to May 22, 2012. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Howell, Chad 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.