Citation Nr: 24005995 Decision Date: 02/03/24 Archive Date: 02/03/24 DOCKET NO. 20-04 625 DATE: February 3, 2024 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to December 20, 2021, is denied. FINDING OF FACT The evidence fails to establish that the Veteran is unable to obtain and maintain substantially gainful employment as a result of service-connected disabilities for the appeal period prior to December 20, 2021. CONCLUSION OF LAW The criteria for TDIU have not been met for the appeal period prior to December 20, 2021.?38?U.S.C. §?1155;?38?C.F.R. §§?3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1971 to February 1983. This matter comes before the Board of Veterans' Appeals (Board) from an October 2017 Regional Office (RO) rating decision that granted service connection for post-traumatic stress disorder (PTSD) and assigned an initial 50 percent rating from May 10, 2017. The Veteran appealed the initial rating assigned for PTSD. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ) at a hearing held in January 2022. A transcript of the hearing is of record. In an October 2022 decision, the Board took jurisdiction of entitlement to a TDIU per Rice v. Shinseki, 22 Vet. App. 447, 453 (2009), as part and parcel of the TDIU claim and remanded the TDIU issue to the RO to develop this matter. The Board adjudicated the issue of entitlement to an increased rating for PTSD other than TDIU. Thereafter, while the matter was pending on remand status, a May 2022 rating decision granted service connection for lung cancer, rated 100 percent disabling, effective December 20, 2021. Thus, from December 20, 2021, a TDIU is moot as a total rating constitutes a higher benefit. See Bradley v. Peake, 22 Vet. App. 280, 293-94 (2008); see also Buie v. Shinseki, 24 Vet. App. 242, 248 (2010). The Board recognizes that in Bradley the Court held that a situation may arise where a veteran has a schedular total rating for a particular service-connected disability but could nevertheless establish a TDIU rating for other service-connected disability in order to qualify for SMC under 38 U.S.C. § 1114(s) by having an additional disability of 60 percent or more. This situation does not apply here, however, as in this case there are no additional disabilities combining to 60 percent. In a September 2023 decision the Board remanded the TDIU issue for the appeal period prior to December 20, 2021, to direct the RO to refer the Veteran's claim for a TDIU per § 4.16 (b) to the Director, Compensation Service, for extraschedular consideration as to whether his service-connected PTSD rated at 50% as of May 10, 2017, precluded him from participating in gainful employment prior to December 20, 2021. The remand also pointed out that the Veteran had failed to respond to a November 2022 letter requesting that he complete VA Form 21-8940 Veterans Application for Increased Compensation Based on Unemployability and VA Form 21-4192 Request for Employment Information in Connection with Claim for Disability Benefit to support a claim for a TDIU. Thereafter, an extraschedular review and opinion was obtained in October 2023, and entered into the claims file on November 6, 2023. This matter is now returned to the Board for additional consideration. TDIU for the period prior to December 20, 2021 The Veteran contends that he is entitled to TDIU for the appeal period beginning May 20, 2017, and continuing prior to December 20, 2021. At his January 2022 hearing where he discussed the severity of his PTSD symptoms, he reported having worked as a barber and last worked at age 57. He indicated he quit working because he couldn't handle the anxiety being around people indicating it affected his ability to properly work as a barber. Transcript pg. 11-13. For the period prior to December 20, 2021, the lone service-connected disability was PTSD rated 50 percent disabling, effective May 10, 2017. VA will grant a TDIU where the evidence shows that a Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.340. 3.341, 4.16. If there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more such disabilities, there shall be at least one disability 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. Where a Veteran's disability picture during the period on appeal does not meet the criteria set forth at 38 C.F.R. § 4.16 (a), a total disability rating may also be assigned on an extraschedular basis, pursuant to 38 C.F.R. § 4.16 (b). Section 4.16(b) applies to Veterans who are unemployable by reason of service-connected disabilities but fail to meet the percentage standards set forth in section 4.16(a). 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 Compensation Services for consideration of entitlement to TDIU on an extraschedular basis. Bowling v. Principi, 15 Vet. App. 1, 8-10 (2001); see Wages v. McDonald, 27 Vet. App. 233, 236 (2015); 38 C.F.R. § 4.16 (b). In September 2023 the Board remanded the issue of entitlement to extraschedular TDIU to the Director, Compensation Service for consideration of entitlement to TDIU on an extraschedular basis. In October 2023 (entered into the claims file November 2023) the Director of Compensation services returned a negative decision on the matter of entitlement to TDIU. As the Director of Compensation Services has adjudicated this claim in the first instance, the claim is ripe for adjudication on the merits by the Board. 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). In deciding a Veteran's TDIU claim, consideration shall be given in all claims to the nature of any previous employment and the reason for termination, as well as the Veteran's level of education, special training, and previous work experience. 38 C.F.R. § 4.16. Entitlement to TDIU is based on an individual's particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Applicable general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability; resolving any reasonable doubt regarding the degree of disability in favor of the claimant; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity. See 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.10; see also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The RO sent the Veteran a development letter regarding this matter, with a notice sent in November 2022 to the Veteran's most recent address, The development letter advised the Veteran of information needed to complete the claim for TDIU and not only included the VA Form 21-8940 but also 21-4192 Request for Employment Information in Connection with a Claim for Disability Benefits. The Veteran failed to respond to this letter. In an October 2023 opinion from the VA Director, Compensation and Pension Service (Director), it was noted that the Veteran failed to respond to the November 2022 Development Letter requesting he fill and return a VA Form 21-8940 Veterans Application for Increased Compensation Based on Unemployability and VA Form 21-4192 Request for Employment Information in Connection with Claim for Disability Benefit to support a claim for a TDIU. The Director also noted review of the record dating back to 1997, showing some conflicting evidence as to whether the Veteran was employed or employable as a barber, the duration of such employment, and whether his PTSD symptoms impacted his ability to obtain and maintain employment. This extraschedular opinion included review of a November 1997 record describing he was unable to work as a barber due to shaking, while a January 1998 record described him as increasing his hours at the barbershop to 6 hours a day, three days a week and he reported he goes home when his hands get shaky. Records from February 1999 noted that he worked as a barber, where an examiner diagnosed panic disorder without agoraphobia and could work as a barber, although another record from the same month indicated he was worried that he would be unable to work as a barber without Alprazolam which he had been off of for over a month. Records from November 2000, April 2001, April 2003, and September 2004 were noted to show he was working full time as a barber, with the April 2001 note indicating he had done so for the past 20 plus years. The April 2003 note indicated he was able to work with Alprazolam. The Director further noted that a March 2007 record indicated that he reported he was a retired barber but in April 2008 and January 2009 he reported working as a barber. Further a November 2010 VA treatment record was noted to include his history of having been a barber for the past 27 years. Additional conflicting employment histories included a November 2013 VA examination containing the Veteran's report that he last worked as a barber in 2003 and stopped working due to anxiety, while conversely, a February 2016 VA treatment record contained the Veteran's report that he maintained employment as a barber for many years and recently retired. The Director further noted that the August 2017 VA PTSD examination during the pendency of this appeal included the Veteran's self-report that his longest civilian employment was as a self-employed barber for approximately five years between 1995 and 2000, until he finally quit due to a lack of customers and because he was too nervous to cut hair well. This gave a history of his having been last employed as a barber between 2010 and 2012, but again he was unable to retain customers. He reported that he was generally able to get along with supervisors and coworkers. A February 2018 VA PTSD examination revealed that the Veteran was very vague about his work history. He said he worked as a barber but could only work for a little time because of his anxiety. The February 2018 examination contained an opinion that his PTSD is mild and does not preclude employment. The work history in a December 2019 PTSD VA examination contained the Veteran's report that he worked most recently as a barber when he was approximately 57 years old, in approximately 2007. He had panic attacks throughout his career. Also reviewed was his January 2022 Board hearing testimony where he again asserted that he worked as a barber until he was 57 years old. Based on the medical evidence, the Director gave an opinion Veteran's service-connected disabilities do not reflect him incapable of gainful employment from May 10, 2017, to December 20, 2021. The Director considered his employment background, educational history, and other relevant subjective factors, however these elements, coupled with the objective findings regarding his service-connected disabilities is not sufficient to conclude that he was unemployable during this time span. The Director concluded that the medical evidence fails to show the Veteran's mental condition was of such severity as to preclude gainful employment. The Director found no evidence of exceptional or unusual circumstances which would take the Veteran's case outside the norm of similarly rated Veteran's. It has not been demonstrated that the Veteran's case presents such a unique disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as a result of service-connected disability as to render impractical the application of regular schedular standards. Based on review of the evidence, the Board agrees with the findings of the Director in this October 2023 Extraschedular opinion. As noted by the Director, the evidence is replete with conflicting evidence regarding the actual duration of the Veteran's career as a barber. The Veteran failed to provide additional information regarding his educational and vocational history when asked by the VA to provide such information in November 2022. As pointed out by the Director, this conflicting evidence predating the appeal period beginning May 10, 2017, included the conflicting evidence from November 1997 describing an inability to work as a barber due to shaking, while a few months later in January 1998 he was increasing his hours working at the barbershop to 6 hours a day, three days a week, but went home when his hands get shaky. Likewise, the Board reviewed the February 1999 records noted in the Extraschedular opinion giving a history of his concerns about being able to work as a barber when off his medication of Alprazolam. Records from November 2000, December 2000, April 2001, and May 2001 describe him as employed as a barber, with the April 2001 records also noting that he had an educational history of 2-3 years college in addition to high school education and completion of barber college. The May 2001 records described employability and better functioning on "Benzo." Later a January 2002 record described his having lost several jobs because of shaking and was currently unemployed. The Board additionally notes conflicting evidence, including in April 2003, where he was described as owning his own barber shop and doing well, while records from the same month also describe fairly clear panic episodes that have interfered with his function as a barber but reflect good compliance with medication of Alprazolam. He was noted to be employed as a barber in September 2004. The Board further notes the VA treatment records for PTSD symptoms repeatedly described the Veteran as unemployed in July 2005, January 2006, July 2006, January 2007, June 2007, August 2007, November 2007, April 2008, October 2008, May 2009, November 2009, April 2010, September 2010, December 2010, July 2011, February 2012, August 2012, and January 2013. However, conflicting evidence includes a January 2007 record describing him as employed as a barber with no concerns. A few months later, a March 2007 record described him as a "retired barber." Subsequently April 2008, July 2008, January 2009 primary care follow up records repeatedly described him as actively working as a barber. In October 2010 he was entered into a treatment program for substance abuse and although unemployed at the time, a November 2010 record again noted his history of post high school education of 2-3 years of college as well as his career as a barber, with him reporting having been a barber for the past 27 years. The November 2010 records described him as possessing legitimate marketable work skills. Furthermore, social work notes from the same month described him as working as a barber for 25 years and also noted that the Veteran as having an alternate plan to possibly farm 30 acres he owned. A February 2016 record is noted to have described the Veteran as having maintained employment as a barber for "many years" and he said he recently retired. VA examinations likewise are noted to contain conflicting employment histories. A February 2011 VA PTSD examination indicated that he worked as a barber for "many years" while conversely in a November 2013 VA PTSD examination the Veteran gave a history of having last worked in 2003 as a barber and stopped working because of anxiety. VA examination reports during the appeal period prior to December 20, 2021, includes an August 2017 VA PTSD examination which diagnosed PTSD with findings of occupational and social impairment with reduced reliability and productivity. His occupational history was significant for his reporting that his longest civilian employment was as a self-employed barber for approximately five years between 1995 and 2000, until he finally quit due to a lack of customers, because he was too nervous to cut hair well. He was last employed as a barber between 2010 and 2012, but again was unable to retain customers. The veteran reports that he was generally able to get along with supervisors and coworkers. His PTSD symptoms at the time were reported as anxiety, chronic sleep impairment, panic attacks more than once a week, and difficulty adapting to stressful circumstances, including work or a work like setting. Later in a February 2018 VA examination which again only diagnosed PTSD, the Veteran was described as having 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. In this examination he was noted to be very vague about his work history. He said he worked as a barber but could only work for a little time because of his anxiety. His symptoms were noted to be depressed mood, anxiety, difficulty in establishing and maintaining effective work and social relationships and difficulty in adapting to stressful circumstances, including work or a worklike setting. The examiner is noted to have remarked that the Veteran's PTSD is mild and does not preclude employment. Finally, a December 2019 VA PTSD examination again diagnosed PTSD, which was described as resulting 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. His occupational history was described as having worked most recently when he was approximately 57 years old, in approximately 2007. He was cutting hair as a barber. He had panic attacks throughout his career. His symptoms were depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, impairment of short- and long-term memory, for example, retention of only highly learned material, while forgetting to complete tasks, and disturbances of motivation and mood. The VA treatment records for the appeal period from May 10, 2017, prior to December 10, 2021, do not indicate that he was employed during this time period. He is noted in a September 2017 record to describe a moderate treatment response to medications, with anxiety decreased, and he was noted to prefer staying busy, and gets restless when not doing something. He was noted to do yard work, worked in the garden, did canning, and traveled to visit his son. In March 2018, he indicated his anxiety worsened in the winter as he didn't have as much to do, and he had difficulty relaxing and had to stay busy. He was noted to participate in gardening. Similar complaints of low mood due to decreased activity during the winter were noted in March 2019, while an April 2020 record described his mood as "pretty good" and he was spending his time planting a garden. As discussed above, the Board agrees with the unfavorable opinion and conclusions made by the Director in the October 2023 Extraschedular opinion. In this matter the Board notes that the evidence provided by the Veteran in various medical records and VA examination reports is wholly contradictory as to his employment history of when he actually stopped working as a barber. Thus, he is not found to be a credible or reliable witness as to the actual duration of such employment. Furthermore, he failed to provide further employment information when requested to do so by the VA in the November 2022 Development Letter. The claimant bears the burden of presenting and supporting his claim for benefits.?38?U.S.C. §?5107?(a). See Fagan v. Shinseki,?573 F.3d 1282?(Fed. Cir. 2009). As noted above, the duty to assist is not a one-way street or a blind alley; a claimant cannot remain passive when he has relevant information solely within his control. See Wamhoff v. Brown,?8?Vet. App.?517?(1996). (Continued on the next page) ? In this matter the credibility issues with the Veteran's reported employment history regarding the duration of such employment, coupled with the findings from the VA examination reports during the pendency of this appeal finding no more than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily per the December 2019 VA examination, and no occupational impairment reported in the February 2018 VA examination, the Board finds that the evidence weighs against a finding of TDIU based on his lone service connected PTSD for the appeal period prior to December 20, 2021. The evidence fails to establish that his service-connected PTSD alone is of sufficient severity to produce unemployability." See Hatlestad supra, see also 38 C.F.R. § 4.16. Therefore, the entitlement to a?TDIU?cannot be granted without resorting to speculation, and the claim must be?denied. See?38?C.F.R. §?3.102. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Eckart, C. 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.