Citation Nr: 25005157 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 18-52 300 DATE: April 16, 2025 ORDER Entitlement to a total disability rating due to individual unemployability (TDIU) due to a combination of service-connected disabilities on an extraschedular basis, for the period from December 31, 2002, to June 12, 2007, is granted. FINDING OF FACT From December 31, 2002, the evidence is at least in approximate balance in showing that the Veteran was rendered unable to secure and follow substantially gainful employment due to his service-connected disabilities. CONCLUSION OF LAW For the period from December 31, 2002, to June 12, 2007, the criteria for entitlement to TDIU on an extraschedular basis are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1968 to October 1971, including service in the Republic of Vietnam from April 1969 to March 1970. The Board thanks the Veteran for his service to our country. This matter comes before the Board of Veterans' Appeals (Board) on remand from the United States Court of Appeals for Veterans Claims (Court). This case was previously before the Board most recently in March 2023. The March 2023 Board decision granted a TDIU for the period from June 12, 2007, to January 9, 2019. The March 2023 Board decision denied a TDIU for the period prior to June 12, 2007. To the extent of the Board's denial of extraschedular TDIU for the period prior to June 12, 2007, the Veteran appealed the Board's March 2023 decision to the Court. In a June 2024 Memorandum Decision, the Court vacated the Board's March 2023 decision to the extent of the denial of TDIU prior to June 12, 2007. The Court remanded the issue back to the Board for readjudication consistent with the decision. The case has now returned to the Board for final appellate review. 1. Entitlement to a TDIU due to a combination of service-connected disabilities on an extraschedular basis, for the period from December 31, 2002, to June 12, 2007, is granted. The appeal period for the Veteran's TDIU claim begins with the date of December 31, 2002, the effective date of service-connected compensation for hypothyroidism, and the earliest effective date for any service-connected compensation for this Veteran. This beginning of the appeal period was explained in the Board's now-vacated March 2023 decision, discussed without objection in the Court's June 2024 Memorandum Decision, and is not a matter of controversy in this case. The Veteran and his attorney contend the Veteran was precluded from working at a substantially gainful level due to his service-connected disability prior to June 12, 2007. VA will grant TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from obtaining or maintaining "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). For the purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3) disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). The established policy of VA reflects 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. 38 C.F.R. § 4.16. Factors such as employment history and educational and vocational attainments are to be considered. Id. For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The Court has held that "substantially gainful occupation" contains both economic and noneconomic components. Ray v. Wilkie, 31 Vet. App. 58 (2019). The economic component "simply 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." Id. The non-economic component requires consideration of the Veteran's history, education, skill, and training, and physical and mental ability to perform the activities required by an occupation. Further, the word "substantially" suggests an intent to impart flexibility into a determination of overall employability, as opposed to requiring the appellant to prove that he is 100 percent unemployable. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). 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). Regulations provide that if the above-mentioned percentage requirements for TDIU on a schedular basis are not met, TDIU may still be granted on an extraschedular basis in exceptional cases when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. §§ 3.321(b), 4.16(b). In Bowling v. Principi, 15 Vet. App. 1, 10 (2001), however, the Court, citing its decision in Floyd v. Brown, 9 Vet. App. 88, 94-97 (1995), held that the Board cannot award TDIU under 38 C.F.R. § 4.16(b) in the first instance because that regulation requires that the AOJ first submit the claim to the Director, Compensation Service (Director), for extraschedular consideration. In this case, prior to June 12, 2007, the Veteran was service connected for posttraumatic stress disorder (PTSD), rated as 30 percent disabling; hypothyroidism, rated as 30 percent disabling; bilateral tinnitus, rated as 10 percent disabling; and erectile dysfunction, rated as 0 percent disabling effective from March 30, 2007. His combined rating during this period was 60 percent. Based on the aforementioned ratings, the Veteran did not meet the 38 C.F.R. § 4.16(a) schedular requirements for TDIU prior to June 12, 2007. The Board notes that more recently, after the rating period at issue in this decision, the Veteran's service-connected PTSD pathology has been further characterized by VA as PTSD with persistent depressive disorder with other specified schizophrenia spectrum and other psychotic disorder and persistent auditory hallucinations. While the recharacterization occurred after the rating period in controversy, the Board finds that neither the factual nor procedural history of this case entirely distinguishes the Veteran's mental health during the pertinent rating period from all of the features indicated in the more detailed current characterization of the service-connected pathology. While the Board effectively found in the June 2022 remand that there was plausible evidence of record that the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities warranting referral to the Director for extraschedular consideration, the Board's referral of the matter for extraschedular consideration was a preliminary finding. Moreover, at the time of the June 2022 Board remand, the period for which extraschedular consideration was relevant spanned from 2002 all the way to January 9, 2019. Since that time, an increased rating awarded in an October 2022 RO rating decision changed the rating picture such that the schedular criteria for TDIU are now met for the portion of the rating period from June 12, 2007, and the Board has already determined that a TDIU is warranted for that portion of the rating period. The Board's June 2022 remand effectively found that there was sufficient evidence to substantiate a reasonable possibility that the Veteran was unemployable by reason of his service-connected disabilities. The Board did not find that he was unemployable, and did not make any finding regarding the entirety of the rating period. Hence, the Board's referral was not an ultimate finding on the TDIU issue for the period prior to June 12, 2007. Smiddy v. Wilkie, 32 Vet. App. 350, 359 (2020); Ray v. Wilkie, 31 Vet. App. 58, 65 (2019). The Director's October 2022 findings have been considered, but the Board has conducted an independent de novo review of the evidence. Although the Board is required to obtain the Director's decision before awarding extraschedular TDIU benefits in the first instance, the Board is not bound by the Director's decision or otherwise limited in its scope of review of that determination. Wages v. McDonald, 27 Vet. App. 233, 236-38 (2015) (citing to 38 U.S.C. §§ 511(a), 7104(a); 38 C.F.R. § 4.16(b)); see Anderson v. Shinseki, 22 Vet. App. 423 (2009). The Veteran's service-connected disability, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). Now, the Board must make its own determination as to whether an extraschedular award of TDIU is merited. Upon consideration of the recently expanded evidentiary record, the Board finds that the evidence now supports entitlement to TDIU on an extraschedular basis prior to June 12, 2007. See Ray, 31 Vet. App. at 58. The Court's memorandum decision discusses findings including that evidence shows impairments prior to June 2007 that "appear to be the same or similar to the symptoms that the Board relied on to grant a TDIU after 2007." Specifically, the Court cited the fact that "the 2020 vocational expert stated that appellant experienced psychiatric symptoms associated with his PTSD - fatigue, anger, hypervigilance, hallucinations, nightmares, and flashbacks - since the beginning of the appeal period." Additionally, the Court cited that "In 2003, VA attributed appellant's fatigue, mental decline, and sluggishness to his service-connected hypothyroidism." Significantly, important new evidence has been recently added to the record in this case: a January 2025 Employability Evaluation was received by VA in March 2025. This report was prepared by a vocational expert with training in "Industrial and Organizational Psychology." The conclusion of this report reads: Therefore, upon review of the medical information in the VA claims file, it is my vocational opinion that it is at least as likely as not that [the Veteran]'s service-connected PTSD with persistent depressive disorder with other specified schizophrenia spectrum and other psychotic disorder: persistent auditory hallucinations and hypothyroidism have precluded his ability to secure and follow substantially gainful employment, to include unskilled sedentary work, since at least December 2002 and continuing to the present. The vocational expert discusses review of the Veteran's "claims file in its entirety." The expert discusses the Veteran's educational background ("highest level of completed education is high school"). The expert discusses the Veteran's work history and earnings history in detail, including noting the concern that although the Veteran had "no income from 2004 to 2007," there was "$63,756" in 2003. The expert addresses this with attention to "the 01/03/2019 Affidavit [in which] the Veteran explained that he had taken a leave of absence from work in May 2002 and was laid off .... He has not worked in any capacity since 2002.... [T]he earnings in 2003 were the result of a severance payment...." The expert accounts for this and explains that "the Veteran's income in 2003 was the result of a severance payment and not work activity performed that year.... [It] does not constitute substantially gainful employment, nor is it indicative of [the Veteran]'s ability to secure and follow substantially gainful employment during that time." The vocational expert detailed information regarding occupational standards in the context of the Veteran's "employment as a Turbine/Boiler Operator." The Board notes that the expert presents a thorough and, to a reasonable extent, persuasive analysis of the Veteran's capacity to perform employment during the period at issue. The expert discusses January 2003 medical records as showing "the Veteran is not doing anything at home. He experiences fatigue and anxiety. The examiner explained to the Veteran that his thyroid condition can cause fatigue and depression." The expert discusses a November 2003 medical record as showing "the Veteran has hypothyroidism that is still symptomatic. He has 'no energy to do anything.'" The expert discusses a December 2003 VA PTSD examination report as showing that: psychiatric symptoms in the last year are of a moderate frequency for some symptoms and continuous for depression.... being frightened and scared of people, staying to his own home .... Irritability and easy anger .... depression increased over the last year since being laid off .... nightmares and intermittent suicidal ideation .... Relationships have been disturbed by his anger, irritability, and easy loss of temper .... appeared fatigued on examination .... The expert noted that in the December 2003 VA PTSD examination, the Veteran "has heard mumbling voices at night and has seen shadows...." Also, he "has easy loss of verbal control and loses his temper easily." The expert discusses a January 2006 VA PTSD examination report showing impairments generally compatible with those discussed in the prior examination report. The expert also discusses a June 2006 medical report. The vocational expert also points to the Veteran's January 2019 Affidavit and discusses that "he reported that he had difficulty concentrating on the task at hand when he was working.... He also began to experience visual and auditory hallucinations at work due to his PTSD about once per month...." The expert points to the Veteran's testimony that: "His hallucinations took a toll on his productivity...." The vocational expert goes on to explain a reasonable rationale for finding that the Veteran's impairments during the period at issue were "overwhelmingly likely to result in termination" and were incompatible with the "requirements of all competitive employment." The vocational expert finds that the Veteran was "at least as likely as not unable to apply any skills he may have previously acquired through his employment history, educational, and vocational attainments to new job tasks in a meaningful and effective manner...." The evidence in this case is not unequivocal. However, the Board finds that the January 2025 report and opinion of the vocational expert is reasonably persuasive and probative evidence with an explanation of rationale drawing upon the contents of the evidence of record in this case. The Board finds that no contrary evidence of record is significantly more persuasive than the January 2025 vocational expert's assessment. Therefore, when looking at the totality of the relevant factors, the Board resolves any reasonable doubt in the Veteran's favor and finds that entitlement to TDIU based on the Veteran's service-connected disabilities is warranted for the period from December 31, 2002, to June 12, 2007. 38 C.F.R. § 4.16(b). The Board acknowledges that VA's duty to maximize benefits requires it to assess all of a claimant's service-connected disabilities to determine whether any combination of the disabilities establishes eligibility for special monthly compensation (SMC) under 38 U.S.C. § 1114(s). See Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2010); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). In Bradley, 22 Vet. App. 280, the Court held that 38 U.S.C. § 1114(s) permits a TDIU rating based on a single disability to satisfy the statutory requirement of a total rating. When a Veteran is awarded TDIU based on a single disability and receives schedular disability ratings for other conditions, SMC based on the statutory housebound criteria may be awarded so long as the same disability is not counted twice, i.e., as a basis for TDIU and as a separate disability rated 60 percent or more disabling. A Veteran with a 100 percent schedular disability rating for a single service-connected disability could also obtain a TDIU on a single separate disability (though not on multiple service-connected disabilities), in order to meet the SMC requirements (100 percent rating plus 60 percent rating). A TDIU could meet the SMC requirements by either: a) increasing a single disability rating of less than 60 percent to at least 60 percent (in a case where a separate 100 percent rating is already established), or b) increasing a single disability that is less than 100 percent to a total (100 percent) rating, in a case where there is already established a combination of other ratings that meet the separate 60 percent rating requirement for SMC. See Buie, at 249-50. Concerning both Bradley and Buie, in this case, the Veteran has not contended, and the evidence of record does not reflect, that any single service-connected disability rendered him unable to secure or follow a substantially gainful occupation during the period for consideration. The Veteran is service connected for multiple disabilities during the period for consideration and has not contended that he was unemployable due to any single one of those disabilities. Nor does the evidence indicate that any one of the Veteran's disabilities was of such severity to justify the assignment of a TDIU based on that disability alone. The Board thus finds that ? neither Bradley nor Buie is applicable here, and entitlement to SMC based on housebound status is not warranted. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Barone, Alexander 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.