Citation Nr: 24015992 Decision Date: 04/15/24 Archive Date: 04/15/24 DOCKET NO. 18-08 593 DATE: April 15, 2024 ORDER As of November 18, 2014, a total disability rating based on individual unemployability due to service-connected disability (TDIU) on an extra-schedular basis is granted. FINDING OF FACT Resolving all doubt in the Veteran's favor, his service-connected posttraumatic stress disorder with alcohol and stimulant use disorder (PTSD) rendered him unable to secure or follow a substantially gainful occupation consistent with his education and work history as of November 18, 2014. CONCLUSION OF LAW As of November 18, 2014, the criteria for a TDIU on an extra-schedular basis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1987 to November 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in February 2017 by a Department of Veterans Affairs (VA) Regional Office. In August 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In February 2022, December 2022, and July 2023, the Board remand the case for additional development and it now returns for further appellate review. Entitlement to a TDIU prior to April 20, 2022. The Veteran contends that he is unable to maintain gainful employment as a result of his service-connected PTSD. Specifically, throughout the appeal period, he reported that his psychiatric symptomatology prevented him from maintaining employment. In this regard, the Veteran testified that due to the nature of his symptoms, he would require an unpredictable schedule, and would not be a reliable employee due to his coping techniques that would make work incompatible with maintaining his sobriety and managing his symptoms. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and if there are two or more 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(a). Rating boards should submit to the Director of Compensation Service (Director) 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 38 C.F.R. § 4.16(a). 38 C.F.R. § 4.16(b). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the United States Court of Appeals for Veterans Claims (Court) held that the initial extra-schedular referral decision under § 4.16(b) should address whether there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities." The Court also defined the term "unable to secure and follow a substantially gainful occupation" in § 4.16(b) to include two components: one economic and one noneconomic. The economic component means an occupation 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. The non-economic component includes consideration of the veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. In Snider v. McDonough, 35 Vet. App. 1 (2021), the Court held the Board must address the Ray standard, i.e., whether there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities" to require referral of the issue of entitlement to a TDIU to the Director under 38 C.F.R. § 4.16(b), prior to reaching the question of whether the Veteran's service-connected disabilities render him unemployable. As of November 18, 2014, the Veteran is service-connected for PTSD, evaluated as 50 percent disabling prior to April 20, 2022, and a 100 percent disabling thereafter, thus rendering his claim for a TDIU moot as of such date as he is not service-connected for any other disability. Accordingly, the Veteran does not meet the schedular criteria for a TDIU for the period from November 18, 2014, to April 20, 2022. However, as detailed in the July 2023 remand, the Board found that, as there was sufficient evidence to substantiate a reasonable possibility that the Veteran was unemployable by reason of his service-connected PTSD, referral for extra-schedular consideration for such period was warranted. In this regard, an April 2016 Application for Increased Compensation Based on Unemployability (VA Form 21-8940) reflects that the Veteran completed two years of college and training as a teacher of English as a foreign language. He further indicated that he last worked full-time in 2010, at which time he was a cashier for VA. Thus, the Veteran has been unemployed for the entirety of the appeal period. With respect to the impact of the Veteran's service-connected PTSD on his employability for the appeal period from November 18, 2014, to April 20, 2022, he testified at the August 2021 Board hearing that his symptoms, to include memory issues, fear, anger, his communication style, and depression, impact his ability to report to work on a consistent basis and complete tasks, which would render him unproductive and unable to perform well in an occupational setting. Additionally, August 2015, January 2017, and November 2019 VA examiners found that the Veteran's PTSD resulted in occupational and social impairment resulted in reduced reliability and productivity. Further, the January 2017 examiner found that he was employable as he had the ability to communicate, fair judgment, fair concentration, and adapt to changes. Additionally, while the Veteran was likely bothered by stress, he could work in open or confined spaces, alone or with the public. Nonetheless, he also found that the Veteran needed to seek follow up treatment as he required ongoing engagement in mental health services to address symptom management and distress tolerance, and continue to evaluate treatment effectiveness as he had reported a very limited response to treatment. Furthermore, the November 2019 examiner found that the Veteran's psychiatric disturbance caused significant distress in his life and daily functioning. In this regard, he was not working and continued to live with his mother in her house. Additionally, he described his typical day consisted of leaving his room only after his mother has left for work and watching a lot of television. The Veteran also reported an angry confrontation with someone at the gym that led to a physical confrontation. Moreover, an April 2022 VA examiner found that the Veteran's PTSD resulted in total occupational and social impairment, and his symptoms were likely to have frequent and significant impact on his ability to function. Thus, she found that the Veteran's current impairment in social, academic, occupational, and/or other important areas of functioning was severe. In July 2023, upon a review of the foregoing, the Board found that, while the August 2015, January 2017 and November 2019 VA examiners determined that the Veteran's PTSD resulted in occupational and social impairment with reduced reliability and productivity, his August 2021 Board hearing testimony and the aforementioned examinations detailing the functional limitations associated with such service-connected disability substantiates a reasonable possibility that he is unemployable by reason of his service-connected PTSD for the appeal period from November 18, 2014, to April 20, 2022, such that referral for extra-schedular consideration was warranted. See Snider, supra. Thereafter, in February 2024, the Director provided an advisory opinion that is unfavorable to the Veteran's claim. In support thereof, she noted that, during the November 2019 VA examination, the Veteran reported that he was independent with his activities of daily living, assisted his mother with grocery shopping, denied substance abuse since his January 2017 VA examination, and watched several hours a day watching television. The Director further observed that the January 2017 VA examiner found that the Veteran was employable, can communicate, has fair judgment, has fair concentration, can adapt to change, and, while likely bothered by stress, can work in open or confined spaces and is able to work alone or with the public. She also noted that Social Security Administration (SSA) records reflected that, in 2015, the Veteran was able to understand and remember simple tasks and routines, his abilities to carry out very short and simple instructions, perform activities within a scheduled, maintain regular attendance, sustain an ordinary routine without special supervision, and be punctual with customary tolerances were not significantly limited. Further, she noted that such records indicated that his ability to make simple work-related decisions was not significantly limited, and he was not limited to unskilled work due to his impairment. Consequently, the Director found that, in consideration of all relevant evidence, to include, but is not limited to, the Veteran's medical, education, training, and work history, and taking into consideration the potential for reasonable accommodations under the American with Disabilities Act, as well as the wide spectrum of sedentary or semi-sedentary jobs that require no specialized training or skill, the overall evidence failed to support the contention that the Veteran's service-connected disabilities support an exceptional situation that precludes all types of gainful employment. However, in addition to the foregoing evidence that gave rise to the Board's referral of the Veteran's TDIU claim to the Director, VA treatment records also reflect that his PTSD had interfered with his job attendance, and he had lost employment due to his alcohol and substance abuse. Furthermore, SSA records reveal that the Veteran was found to be disabled as of September 2014 due to his anxiety disorder, and psychoactive substance and dependence disorders. In this regard, such reflect that the Veteran had limited social skills, un-intact abstract thinking, and paranoia. Further, in December 2015, it was found that, while the Veteran was capable of understanding moderately complex workplace instructions, his mental status examination performance suggests mild weakness with short term memory; his ability to concentrate is likely to fluctuate depending on his anxiety level; and his PTSD symptoms are likely to have frequent and significant impact on his ability to function. It was further observed that the Veteran's alcohol and drug abuse are disruptive to his functional ability, and such limitations remained when he was sober. Thus, it was determined that his schizoid interpersonal style and moderately paranoid belief system was a significant disruption in his efforts to interact with other persons in his private life or in a work environment. Consequently, based on the foregoing evidence, which shows varying degrees of impairment related to the Veteran's PTSD, the Board finds the evidence is at least in equipoise as to whether such service-connected disability rendered him unable to secure or follow a substantially gainful occupation consistent with his education and work history as of November 18, 2014. Therefore, the Board resolves all doubt in favor of the Veteran and finds that a TDIU on an extra-schedular basis is warranted as of November 18, 2014. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Sharrocks-Marchione 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.