Citation Nr: 25004149 Decision Date: 03/26/25 Archive Date: 03/26/25 DOCKET NO. 11-00 477 DATE: March 26, 2025 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) on an extra-schedular basis for the period prior to July 30, 2012, is granted. FINDING OF FACT For the period prior to July 30, 2012, the Veteran's service-connected PTSD rendered him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW For the period prior to July 30, 2012, the criteria for an award of TDIU on an extra-schedular basis are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1968 to January 1970. He is the recipient of awards and commendations, including the Purple Heart. This matter comes before the Board of Veterans Appeals (Board) on appeal from a December 2020 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The matter was previously before the Board in March 2021, July 2021, November 2022 and February 2024, when the Board remanded the TDIU claim for referral to the Director of Compensation Services for extraschedular consideration of TDIU for the period prior to July 30, 2012. The Director rendered a November 2024 opinion, denying the claim on an extra-schedular basis for the period prior to July 30, 2012. The question of entitlement to TDIU on an extra-schedular basis for the period prior to July 30, 2012, is now returned before the Board and is addressed below. Entitlement to a TDIU on an extra-schedular basis for the period prior to July 30, 2012, is granted. As discussed in the Introduction, in November 2024, the Director of Compensation Service denied the Veteran's claim for TDIU on an extra-schedular basis for the period prior to July 30, 2012. See November 2024 Advisory Opinion. However, based on a de novo review of the Director's decision and the evidence of record, the Board finds that TDIU on an extra-schedular basis for the period prior to July 30, 2012, is warranted. A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 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. Id. Here, for the period prior to July 30, 2012, the Veteran's service-connected disabilities include PTSD, rated at 10 percent from January 18, 1970, 30 percent from March 5, 2007, and 50 percent from August 27, 2007; anisocoria, rated at 0 percent from January 18, 1970; deviated nasal septum, rated at 0 percent from January 18, 1970; healed shell fragment wound on right forehead, rated at 0 percent from January 18, 1970; bilateral hearing loss, rated at 0 percent from February 7, 2017; and hypertension, rated at 0 percent from August 10, 2022. As such, the Veteran's combined ratings do not exceed 60 percent with at least one disability rated 40 percent. Thus, the Veteran does not meet the schedular requirements for TDIU for the period prior to July 30, 2012, and may not, as a matter of law, be awarded for the period prior to July 30, 2012, a TDIU pursuant to 38 C.F.R. § 4.16(a). Extra-schedular TDIU Whether on a schedular or extra-schedular basis, the criteria for evaluating entitlement to a TDIU are the same. In order to be granted a TDIU, the Veteran's service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Other factors that may receive consideration include his employment history, level of education and vocational attainment. See 38 C.F.R. § 4.16. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high disability rating itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question is whether the Veteran, in light of his or her service-connected disorders, 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). Being unable to secure and follow a substantially gainful occupation has been defined 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. In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the Court of Appeals for Veterans Claims 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): "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." When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. See 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Relevant Evidence Here, the Veteran attained a tenth-grade education. Regarding employment, he worked as a paint contractor after he was discharged from the military. He worked in this business until he suffered a compound fracture of his right arm. The arm required surgery, and he underwent physical therapy for 1.5 years. See, e.g., April 2009 VA Review Examination for PTSD. The right arm injury occurred on January 11, 2007, which was his last day of work. At the April 2009 VA Review Examination for PTSD, the Veteran reported that a lot of days he would work only 2-3 hours a day due to problems with limited motivation. Although the central factor in the Veteran's inability to work involved his right arm, the Veteran's wife said that he has had problems with motivation and mood. Based on the foregoing information, the examiner opined that the Veteran's PTSD symptoms contributed to his occupational impairment. At the November 2007 VA Review examination for PTSD, the Veteran reported that he would become depressed at times and would miss 8 or 9 days of work per month because of this depression. In an August 2007 Correspondence, the Veteran reported that he suffers every day of his life from his PTSD symptoms, including the dreams that haunt him. He reported that he is unable to work due to his mental health symptoms. A May 2007 VA examiner opined that the Veteran, due to his PTSD, had intermittent periods of inability to perform his occupational tasks. Further, the Social Security Administration (SSA) has found the Veteran to be disabled due to his PTSD, depression, and his hand injury, effective April 18, 2008. Legal Analysis and Conclusion At the outset, the Board notes that according to both the lay and medical evidence of record, the Veteran's PTSD symptoms hindered his ability to work during the period prior to July 30, 2012. The Board finds the Veteran's statements regarding functional limitation to be competent and credible. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). After reviewing these statements and the other probative evidence of record, the Board finds that the Veteran's service-connected PTSD has prevented him from securing and maintaining gainful employment during the period prior to July 30, 2012. The Board finds persuasive the VA examiners' opinions that the Veteran has functional loss and impairment due in part to his PTSD. See April 2009 VA examination report; May 2007 VA examination report. In so finding, the examiners observed the toll the PTSD symptoms would take on his ability to concentrate in the workplace. The Board notes the opinions, made by trained medical professionals, are based on an accurate factual background, and supported with sound reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Further, although not dispositive, SSA has found the Veteran to be disabled due to his PTSD, in addition to his hand injury. Conversely, the Board finds the opinion of the Director, which is not binding, to be less probative. The Director recommended a denial of entitlement to TDIU on an extra-schedular basis for the period prior to July 30, 2012. However, the stated basis for this recommendation was "evidence does not include any medical opinion indicating that the PTSD interfered with prior employment or would prevent employment at any time," which contradicts the evidence of record. See, e.g., April 2009 VA examination report; May 2007 VA examination report. Moreover, resolution of the question of whether a Veteran is entitled to a TDIU is an adjudicatory, not medical, question. See Floore v. Shinseki, 26 Vet.App. 376, 381 (2013) (noting that TDIU is not purely a medical question; the medical examiner's role is to describe the effects of a disability upon a veteran's ordinary activity; then, the adjudicator must determine whether the veteran is unable to secure or follow substantially gainful occupation as a result of service-connected disabilities). Therefore, resolving reasonable doubt in the Veteran's favor, the Board finds that the evidence of record indicates his service-connected PTSD prevented him from finding and keeping gainful employment for the period prior to July 30, 2012. 38 U.S.C. § 5107. Entitlement to a TDIU is granted on an extra-schedular basis for the period prior to July 30, 2012. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C.J. Cho 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.