Citation Nr: 24005296 Decision Date: 02/01/24 Archive Date: 02/01/24 DOCKET NO. 19-18 978 DATE: February 1, 2024 ORDER Prior to July 23, 2019, entitlement to a total disability rating due to individual unemployability (TDIU) is denied. FINDING OF FACT Prior to July 23, 2019, the Veteran's service-connected disabilities have not been shown to preclude substantially gainful employment. CONCLUSION OF LAW Prior to July 23, 2019, the criteria for a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION This matter came to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) which denied an increased rating for posttraumatic stress disorder (PTSD). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board hearing in February 2021; the transcript is of record. In a September 2022 rating decision, the RO, in pertinent part, granted a TDIU effective July 23, 2019. In May 2023, the Board determined that as the Veteran reported unemployment throughout the rating period on appeal and as he attributed his unemployment to service-connected PTSD, the issue of entitlement to a TDIU prior to July 23, 2019 was determined to be reasonably raised by the record as part of the Veteran's claim for an increased PTSD rating. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Such issue was remanded for further development. Entitlement to a TDIU prior to July 23, 2019 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 as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 4.16(a). If, however, there is only one such disability, it shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one 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). Under 38 C.F.R. § 4.16(b), all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation and Pension service, for extra-schedular 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 § 4.16(a). The Board notes that the Veteran's service-connected disabilities fail to meet the percentage standards set forth in § 4.16(a). Initially, the Board notes that the initial appeal pertaining to the rating assigned to his PTSD stems from a March 3, 2016 increased rating claim. Thus, the period in question with regard to entitlement to a TDIU is from March 3, 2016 to July 22, 2019. For the period prior to July 23, 2019, service connection is in effect for PTSD (30% 02/26/1998; 50% 03/03/2016; 70% 07/23/2019); facial scars (0% 12/08/1992); and scars, right leg (0% 12/08/1992). His combined evaluation is 50 percent from March 3, 2016 to July 22, 2019. Thus, the requirements under 38 C.F.R. § 4.16(a) have not been met for the period prior to July 23, 2019. From July 23, 2019, a TDIU is in effect. In his Application for Increased Compensation Based on Unemployability received in February 2019, he asserted that his PTSD prevented him from securing or following any substantially gainful occupation as of January 15, 2011. He reported that he worked full-time as a steamfitter from 1995 to January 15, 2011. A VA Form 21-4192 from his former employer reflects employment as a steamfitter journeyman from February 25, 1974 to May 11, 2010. VA's policy is to award TDIU in all cases where service-connected disability precludes gainful employment regardless of the percentages awarded. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance, but it can review the record and determine whether an appropriate case is to be referred to the Director of the VA Compensation Service (Director) or Undersecretary for Benefits for such extraschedular consideration. Bowling v. Principi, 15 Vet. App. 1, 8-10 (2001); see Wages v. McDonald, 27 Vet. App. 233, 236 (2015) ("On its face, the regulatory scheme created by § 4.16(b) merely withholds from rating boards the authority to grant extraschedular TDIU in the first instance."). The Veteran's service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not his age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. In determining whether a Veteran is entitled to a total disability rating based upon individual unemployability, the Veteran's non-service-connected disabilities and his advancing age are not for consideration. See 38 C.F.R. § 3.341(a); Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992). The Board's task is to determine whether there are circumstances apart from the non-service-connected conditions and advancing age which would justify a total disability rating based on unemployability. In other words, the Board must determine if there are circumstances, apart from non-service-connected disabilities, that place this Veteran in a different position than other veterans. See 38 C.F.R. § 4.16(a); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1995). 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). Entitlement to TDIU is based on an individual's particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). A July 2014 C&P examination reflects the examiner's finding of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The examiner noted that he worked as a steamfitter through his union local for more than thirty years. He says that he retired three years ago because he was tired of working "forty stories up," not because of psychiatric symptoms. He completed a bachelor's degree in environmental engineering by attending classes part time but has apparently never had a job associated with his academic credentials. He does not attribute his unemployment since retirement to symptoms of PTSD. His PTSD was manifested by depressed mood, anxiety, and chronic sleep impairment. A September 2016 C&P examination reflects the examiner's finding of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The Veteran reported a stable, loving relationship with his wife. He reported that "At times, I have to work hard at it, because of me." He stated that he continues to work at "consciously keeping" his temper in check; the Veteran stated that he apologizes when he has been short-tempered with his wife. He also reports a good relationship with his three adult daughters. He stated that he works at having a good relationship with daughters. He is actively involved in his church. He enjoys going to the gym three times a week. He enjoys spending time with wife and children. He also stated, "I enjoy working with my hands." The examiner noted that, as noted in the July 2014 examination, the Veteran is retired (not due to reported psychiatric reasons). He has been retired for five years. His PTSD is manifested by anxiety; chronic sleep impairment; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. He was cooperative and pleasant throughout the examination process. He denied any passive or active suicidal ideation. The Veteran appeared to be an honest historian when asked questions during the examination. The Veteran underwent a VA psychiatric examination in May 2017. He reported generally having a good relationship with his wife of 44 years and his adult children. He also stated that he would go to church and the gym regularly and meet with a group of Veteran friends once a week for dinner. The examiner noted the following symptoms: anxiety, suspiciousness, chronic sleep impairment, and disturbances of motivation and mood. The examiner opined that the Veteran's mental health symptoms caused occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress. The Veteran denied taking psychiatric medication. Behavioral observations during the examination were generally normal, and the Veteran denied suicidal or homicidal ideation. The Veteran underwent another VA examination in July 2019. He reported that he typically kept busy during the day but that his "demons come out in the evening." He reported an overall worsening in symptoms to the examiner, and the examiner noted the following symptoms: depressed mood; anxiety; chronic sleep impairment; flattened affect; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and difficulty in adapting to stressful circumstances, including work or a worklike setting. The Veteran was also irritable and had hypervigilance. The examiner opined that the Veteran's symptoms caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. In December 2023, the Director, Compensation Service, proffered a statement as to the Veteran's employability prior to July 23, 2019. The Director acknowledged the Veteran's report that he last worked in a full-time capacity in January 2011, and that his prior work was that of a steamfitter. The Director stated that review of the evidentiary record shows that during his period of employment he worked 40 hours per week and did not report any time lost from work. He has a college education and did not receive any additional training or education since becoming too disabled to work. Employment information received from his employer reflects that he was employed beginning February 1974 to May 2010. He worked as a journeyman steamfitter and left this position due to retirement. The Director referenced the VA examination dated September 22, 2016 noting that the Veteran's PTSD resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. It was noted the Veteran was retired but not due to the reported psychiatric reasons. The Veteran underwent a VA psychiatric examination in May 2017. He reported generally having a good relationship with his wife of 44 years and his adult children. He also stated that he would go to church and the gym regularly and meet with a group of Veteran friends once a week for dinner. The examiner noted the following symptoms: anxiety, suspiciousness, chronic sleep impairment, and disturbances of motivation and mood. The examiner opined that the Veteran's mental health symptoms caused occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress. The Veteran denied taking psychiatric medication. Behavioral observations during the examination were generally normal, and the Veteran denied suicidal or homicidal ideation. The Director stated that prior to July 23, 2019, the evidence persuasively weighs against finding that the Veteran's PTSD symptoms caused worse than occupational and social impairment with reduced reliability and productivity. This determination is based on all of the Veteran's symptoms affecting his level of occupational and social impairment. 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. In this case, after considering all relevant evidence; including, but not limited to the Veteran's education, training, work history, and the RO's summary of evidence, the Director of Compensation Service has determined the overall evidence does not support the contention that the service-connected PTSD prevented employment on an extra-schedular basis prior to July 23, 2019. After review of the evidence above, the Board finds that the Veteran's disability picture does not warrant a grant of a TDIU prior to July 23, 2019. In this regard, the examination reports, treatment records, and Veteran's lay statements do not support a finding that the Veteran was unable to maintain substantially gainful employment due to his PTSD during this period. As detailed above, the Veteran maintained full-time employment as a steamfitter from 1974 to 2011 and then retired. There is no indication that he lost time from work due to PTSD symptomatology for the period prior to 2011. There was no indication that he was unable to maintain employment until 2011 due to his PTSD symptomatology. Moreover, per the Veteran's lay reports to examiners in July 2014 and September 2016 he did not attribute his unemployment and retirement due to his PTSD symptomatology. While he testified that he may not be able to return to work due to his PTSD symptoms, to include his temper, such testimony was offered during a period in which a TDIU has been established. See 02/10/2021 Hearing Transcript at 7-8. After his retirement and prior to July 23, 2019, the examination reports and treatment records do not reflect an inability to maintain substantially gainful employment due to his PTSD symptoms. As detailed, the September 2016 and May 2017 examination reports reflect that the Veteran reported good family and friend relationships, and the behavioral observations from the examinations were essentially normal. Both the July 2014 and September 2016 examiners noted that he did not retire from his full-time employment due to his PTSD symptomatology. The Board has also reviewed relevant medical records, including VA group mental health counseling notes throughout the period prior to July 23, 2019, and finds that they do not provide support for a finding of an inability to maintain substantially gainful employment due to his PTSD. Also, the May 2023 Board had concluded that a rating of 70 percent disabling was not warranted for his PTSD for the period prior to July 23, 2019. Thus, while it is clear that the Veteran retired from employment in 2010 or 2011, the evidence does not establish that he stopped working due to his PTSD symptomatology. A TDIU award serves an important role in ensuring that veterans who are unable to work due to their service-connected disabilities are properly compensated. Where, however, a veteran's disabilities do not result in lost income or where legally required accommodations permit a veteran to maintain gainful employment, an award of TDIU does not serve its intended purpose. Cantrell v. Shulkin, 28 Vet. App. 382, 396 (2017) (Lance, J., concurring). The overall medical and lay evidence of record does not reflect that the Veteran was precluded from gainful employment for which he was qualified due solely to his service-connected disability - PTSD - for the period prior to July 23, 2019. Thus, entitlement to a total disability rating based on individual unemployability due to service-connected disabilities is denied for the period prior to July 23, 2019. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.W. Kreindler, 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.