Citation Nr: 24017993 Decision Date: 04/26/24 Archive Date: 04/26/24 DOCKET NO. 15-46 200 DATE: April 26, 2024 ORDER A total disability rating based on individual unemployability (TDIU) prior to March 14, 2017, is denied. FINDING OF FACT Prior to March 14, 2017, the Veteran's service-connected disabilities did not render him unable to secure or follow substantially gainful employment. CONCLUSION OF LAW Prior to March 14, 2017, the criteria for a TDIU were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1990 to May 1991 in the United States Marine Corps, with an earlier period of active duty for training from October 1984 to March 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office. In March 2019, the Veteran testified before the undersigned during a videoconference hearing. A transcript of the hearing is included in the electronic claims file. The electronic filing system contains records that were associated with the file by VA, rather than the Veteran, since the last readjudication of the claim without a waiver of initial review by the VA Regional Office. However, as the records are not pertinent to the claim adjudicated below, there is no risk of prejudice to the Veteran from proceeding without the waiver. 1. A total disability rating based on individual unemployability (TDIU) prior to March 14, 2017, is denied. VA's rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings (generally from 0 to 100 percent) represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. It is the policy of VA, however, to assign a total disability evaluation (100 percent) when the evidence shows that a veteran is precluded, by reason of his or her service-connected disabilities, from obtaining or maintaining "substantially gainful employment" consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341. A threshold requirement for eligibility for a TDIU under 38 C.F.R. § 4.16(a) is that if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. It is the established policy of the Department of Veterans Affairs, however, that all Veterans who are unable to secure a substantially gainful occupation by reason of service-connected disabilities "shall be rated totally disabled." Therefore, rating boards are to submit 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), to the Director, Compensation Service (Director), for extra-schedular consideration. See 38 C.F.R. § 4.16(b). The Court has held that the Board has no power to award a TDIU under 38 C.F.R. § 4.16(b) in the first instance without ensuring that the claim is referred to the Director for consideration of an "extraschedular rating." Bowling v. Principi, 15 Vet. App. 1, 10 (2001). In Snider v. McDonough, 35 Vet. App. 1 (2021), the Court held that where the Board denies a referral for extraschedular consideration under 38 C.F.R. § 4.16(b), it must make two determinations: (1) that a referral for extraschedular TDIU consideration is not warranted because there is insufficient evidence to substantiate a "reasonable possibility" that a veteran is unemployable because of service-connected disabilities and (2) that a TDIU is not warranted because the service-connected disabilities do not render the veteran unemployable. The first inquiry, the question of the referral, is a factual finding based on a lower evidentiary threshold than for a grant of an extraschedular TDIU. In Ray v. Wilkie, 31 Vet. App. 58 (2019), the United States Court of Appeals for Veterans Claims (Court) defined "substantially gainful employment," holding that there is both an economic and a noneconomic component; 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," while the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. The Court set forth a number of factors to consider in making the latter determination, including the following: the veteran's history, education, skill, and training; his or her physical abilities, including any audio or visual limitations, as well as limitations in lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching; and his or her mental ability, including limitations in memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Marginal employment shall not be considered substantially gainful employment. Marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a)(5). In LaBruzza v. McDonough, the United States Court of Appeals for Veterans Claims held that "employment in a protected environment" means "a lower income position that, due to the veteran's service-connected disability or disabilities, is shielded in some respect from competition in the employment market." LaBruzza v. McDonough, No. 21-4467 and No. 20-8562 (Vet. App. Jan. 24, 2024). To briefly summarize the pertinent procedural history, the claim for a TDIU was placed on appeal and remanded by the Board in September 2019 in connection with an underlying September 2010 claim for a higher rating for the service-connected depressive disorder. See Rice v. Shinseki, 22 Vet. App. 447 (2009). As a matter of clarification, the claim has been characterized as including only the period prior to March 14, 2017, because the Veteran has been in receipt of a total (100 percent) schedular rating since that date, along with an award of special monthly compensation pursuant to 38 U.S.C. § 1114(s) to the extent possible. For the portion of the appeal period dated prior to March 14, 2017, the Veteran was service-connected only for depressive disorder, and his combined disability rating was 30 percent. As such, the minimum schedular criteria were not met prior to March 14, 2017. 38 C.F.R. § 4.16(a). In June 2020, the Board denied the claim. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In June 2021, the Court vacated the June 2020 Board decision and remanded the matter to the Board for development consistent with the parties' Joint Motion for Remand (Joint Motion). In doing so, the parties found that the Board failed to discuss the Veteran's educational and occupational history, or analyze the degree of unemployability attributable to service-connected disabilities versus non-service connected disabilities. In January 2022, the Board remanded the claim for further development. In April 2022, the Board again denied the claim. The Veteran appealed the Board's decision to the Court. In March 2023, the Court vacated the April 2022 Board decision and remanded the matter to the Board for development consistent with the parties' Joint Motion. In doing so, the parties cited evidence supporting a referral for extraschedular TDIU consideration prior to March 14, 2017. Specifically, the parties cited to a February 2011 VA examination report, wherein the examiner found that the Veteran's transient/mild significant stress involved PTSD symptoms, and that his self-administered diagnostic depression module score placed him in the "severe range" of depression, which was consistent with his subjective reports and behavioral manifestations. Additionally, on VA examination in March 2017, the Veteran reported to the examiner that he had worked part-time as a delivery driver the year prior, and quit due to his inability to tolerate the attitudes of customers, as well as the fact that he had undergone another shoulder surgery. In July 2023, the Board referred the claim for a TDIU prior to March 14, 2017, to the Director, Compensation Service, for extraschedular consideration. In February 2024, the Director denied an extraschedular TDIU prior to March 14, 2017. With this procedural history, which now includes the February 2024 adjudication by the Director, the Board must determine whether, prior to March 14, 2017, the Veteran's service-connected disabilities precluded him from engaging in substantially gainful employment so as to warrant a TDIU on an extraschedular basis. The Director's decision is not evidence, but, rather, a de facto Agency of Original Jurisdiction decision, and the Board must conduct a de novo review of this decision. Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015) (holding that the Board conducts de novo review of the Director's decision denying extraschedular consideration). The Board's analysis will focus specifically on what evidence is needed to substantiate the claim, and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). When 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 claimant. 38 U.S.C. § 5107(b). Evidence is not in approximate balance or nearly equal, and therefore the benefit-of-the-doubt rule does not apply, when the evidence persuasively favors one side or the other. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). Turning to the evidence, the record shows that the Veteran has a high school degree. He worked full-time from 1985 to 1993 as a foreman, and from 1993 to 2008 as a store manager for AutoZone Inc. and Advance Auto Parts. He stopped working in January 2008 and has not received any other training or education before or since becoming too disabled to work. See VA Form 21-8940; records from the Social Security Administration. In September 2008, the Social Security Administration (SSA) determined that the Veteran was not disabled and his claim for benefits was denied. In February 2010, the SSA reexamined the matter. In an underlying medical report, Dr. G. recommended to the SSA that the Veteran be considered permanently disabled due to his bilateral hip and low back disabilities. The SSA ultimately found the Veteran disabled due to bilateral total hip replacements, hypertension, hyperlipidemia, carpal tunnel syndrome, posttraumatic stress disorder, depressive disorder, and psychotic disorder. He was awarded disability benefits effective January 3, 2008. On VA psychiatric examination in February 2011, the Veteran was clean and casually dressed. He appeared fatigued. His speech was unremarkable, his affect was blunted, and his mood was depressed. He was oriented and displayed normal thought content. Thought processes were tangential. There were no delusions and judgment, memory, and insight were normal. The Veteran reported having hallucinations. There was no inappropriate behavior, panic attacks, obsessive/ritualistic behavior, homicidal thoughts, or suicidal thoughts. Impulse control was fair, and the Veteran could maintain minimal personal hygiene and perform activities of daily living. The Veteran reported that he had stopped working due to a bilateral hip replacement. In addition, as pointed out by the parties in the March 2023 Joint Motion, the examiner noted that a self-administered psychometric test placed him in the "severe" range of depression, which appeared consistent with his subjective reports and behavioral manifestations at the time of the examination. In opining on the overall severity of the psychiatric disability, the examiner concluded that the Veteran's depressive disorder was manifested by mild or transient symptoms which decreased work efficiency and the ability to perform occupational tasks only during periods of significant stress, On VA psychiatric examination on March 2, 2017, the Veteran's symptoms included depression, anxiety, and chronic sleep impairment. He had adequate grooming and hygiene. Psychomotor activity was unremarkable, and his speech was clear and coherent. Thought processes and content were unremarkable. His affect was slightly constricted. He was fully oriented and memory recall testing revealed scores of 2/3 and 3/3. Attention was normal and abstract reasoning was good. Judgment was average, insight was fair, and impulse control was fair. There was no homicidal or suicidal ideation. In addition, as pointed out by the parties in the March 2023 Joint Motion, the Veteran reported to the examiner that he had worked part-time as a delivery driver the year prior, and quit due to his inability to tolerate the attitudes of customers, and having undergone another shoulder surgery. In opining on the overall severity of the disability, the examiner concluded that it was manifested by occupational and social impairment with an occasional decrease in work efficiency and an intermittent inability to perform occupational tasks, although the Veteran was generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. At the March 2019 hearing, the Veteran testified that he had stopped working in 2008 due to his psychiatric symptoms and was found to be disabled by the SSA. He reported that over the last five years, his difficulties with being in crowds and interacting with others had worsened. Considering the pertinent evidence in light of the governing legal authority, the Board finds that prior to March 14, 2017, the evidence is persuasively against a finding that the Veteran's service-connected depressive disorder prevented him from securing or following substantially gainful employment. The economic component of Ray is satisfied because the Veteran was not working in a substantially gainful occupation during this time period. However, the noneconomic component was not met, for the reasons described below. As for the Veteran's history, education, skill, and training, while his education was limited to a high school degree, he had a continuous and extensive work history involving 15 years of experience in the automotive industry, combined with managerial experience. Ray, 31 Vet. App. at 58. The Board thus finds the Veteran's ability to secure or follow substantially gainful employment was, at worst, minimally impaired, based on his history, education, skill, and training. As for the Veteran's physical abilities, prior to March 14, 2017, his single service-connected disability, depressive disorder, did not result in any audio or visual limitations. Similarly, it did not cause any limitations in lifting, bending, sitting, standing, walking, climbing, grasping, typing, or reaching, as contemplated by Ray. The Board thus finds the Veteran's ability to secure or follow substantially gainful employment was completely unimpaired, based on physical capabilities. As for the Veteran's mental abilities, prior to March 14, 2017, his depressive disorder was not shown to cause limitations in memory, concentration, the ability to adapt to change, or demonstrate reliability and productivity, as contemplated by Ray. Indeed, the February 2011 VA examiner determined that the disability caused only signs and symptoms that were transient or mild, and which decreased work efficiency and the ability to perform occupational tasks only during periods of significant stress. The Board has considered the self-administered psychometric test results pointed out by the parties in the March 2023 Joint Motion indicating severe depression. However, the examiner's characterization of the overall severity of the disability was informed by a clinical examination, a review of the claims file, as well as the results of the self-administered and other psychometric tests. The Board is precluded from making its own unsubstantiated medical determinations, such as by interpreting the significance of the single self-administered psychometric test in light of the remaining clinical impressions and findings of the examiner. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The Board thus finds the probative value of the specific and reasoned overall assessment of the trained medical professional outweighs that of the self-administered test result. As for the March 2017 VA examination report, the Board has considered the concerns of the parties in the March 2023 Joint Motion, but again finds that the specific and reasoned assessment of the trained medical professional outweighs that of the Veteran's statement that he stopped working as a part-time delivery driver the year due to an inability to tolerate the attitudes of customers. That examiner too performed a clinical examination, reviewed the claims file, and conducted psychometric testing. Even considering the Veteran's statement regarding the attitudes of customers, the examiner concluded that the disability was "manifested by occupational and social impairment with an occasional decrease in work efficiency and an intermittent inability to perform occupational tasks, although the Veteran was generally functioning satisfactorily, with normal routine behavior, self-care, and conversation." The examiner's findings regarding the symptoms of the Veteran's disability (depression, anxiety, and chronic sleep impairment) are consistent with this overall assessment. Moreover, the Veteran reports of having stopped working part-time the year prior was not based entirely on any difficulty when interacting with customers, but was also based on a non-service connected shoulder surgery. Further, the findings of the SSA indicate that while the Veteran was awarded disability benefits, the determination was based on the combined effect of several non-service connected conditions combined with his psychiatric symptoms, rather than due to the psychiatric symptoms alone. Such non-service connected disabilities included bilateral total hip replacements, hypertension, hyperlipidemia, and carpal tunnel syndrome. For all of these reasons, the Board finds the Veteran's ability to secure or follow substantially gainful employment was, at worst, minimally impaired, based on mental capabilities. The Board is cognizant that in Ray, the Court held that the Board's determination to refer a case for extraschedular consideration under § 4.16(b) is a factual finding that does not bind the Board or require the Board to award an extraschedular rating; however, if the Board denies entitlement to TDIU after referral, the Board "must provide adequate reasons or basis for deviating from its earlier referral decision." Ray, 31 Vet. App. at 58. Factors that could affect the Board's ability to reach a different result include, but are not limited to, the certainty or complexity of factfinding in the initial referral decision, and the extent to which the record changed since the referral decision. As an example, the Court stated that where the Board finds the referral appropriate because it is "beyond dispute" that a veteran is unemployable, more explanation might be needed for a contrary finding than where the Board's referral finding is more equivocal. Id. at 67. Here, as explicitly stated in the July 2023 remand, the Board's referral reflected no certainty or complexity of factfinding for the portion of the appeal period dated prior to March 14, 2017. July 2023 Board Remand, pp, 2. The matter was not referred due to any finding of the Board, but rather, due to the March 2023 Joint Motion for Remand. In addition, since the referral decision, there have been no changes to the record impacting the portion of the appeal period dated prior to March 14, 2017. The referral decision was thus much more equivocal than the example provided by the Ray Court. Given the Board's lack of specificity or support in referring the claim for the portion of the appeal period dated prior to March 14, 2017, and in light of the above-findings, a deviation from the earlier referral is justified. In sum, prior to March 14, 2017, the Board finds the evidence is persuasively against the claim. The noneconomic component of Ray was not satisfied. Rather, the rating assigned for the Veteran's single service-connected disability during the pertinent time period is recognition of the occupational impairment it caused. The evidence is persuasively against the claim, and the benefit-of-the-doubt rule does not apply. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith, 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.