Citation Nr: 1753472 Decision Date: 11/21/17 Archive Date: 12/01/17 DOCKET NO. 09-18 389 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD T. Minot, Associate Counsel INTRODUCTION The Veteran served on active duty in the Marine Corps from August 1969 to August 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In July 2013, the Board determined that the issue of entitlement to a TDIU had been raised by the record, and remanded the matter for evidentiary development. In March 2017, the Board again remanded the claim in order to allow the Agency of Original Jurisdiction (AOJ) to implement a grant of service connection for a skin condition and assign the appropriate disability rating. Such action was taken in an April 2017 rating decision. The Board finds there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT 1. The Veteran is service-connected for posttraumatic stress disorder (PTSD) with alcohol abuse disorder (rated as 30-percent disabling) and granuloma faciale (rated as noncompensable); his combined disability rating is 30 percent. 2. The Veteran's service-connected disabilities do not render him unable to secure and follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.1, 4.15, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran contends that his service-connected disabilities, particularly his PTSD with alcohol abuse disorder, render him unemployable. For the following reasons, the Board finds that the claim for a TDIU must be denied. A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion regarding unemployability, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100-percent disabling; or (2) that the veteran is unable to secure and follow a substantially gainful occupation as a result of service-connected disability and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). For the purpose of establishing one 60-percent disability, or one 40-percent disability in combination, disabilities affecting a single body system are considered as one disability. Id. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to TDIU is based on an individual's particular circumstance." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (quoting Thun v. Peake, 22 Vet. App. 111, 116 (2008)). Therefore, in 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, 168 (1991) (level of education is a factor in deciding employability); see 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 eighth 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). In sum, to warrant a TDIU, the evidence must show that the claimant is incapable of "performing the physical and mental acts required" to be employed. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In this case, the Veteran is currently in receipt of service connection for PTSD with alcohol abuse disorder (rated as 30-percent disabling) and granuloma faciale (rated as noncompensable). His combined rating for these disabilities is 30 percent. Consequently, he is not eligible for a TDIU on a schedular basis, and therefore the only question for the Board is whether TDIU is warranted on an extraschedular basis. See 38 C.F.R. § 4.16(b) ("It is the established policy of the Department of Veterans Affairs 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."). At the outset, the Board acknowledges that it may not assign an extraschedular rating in the first instance. Bowling v. Principi, 15 Vet. App. 1, 9-10 (2001). Where there is plausible evidence that a claimant seeking extraschedular TDIU is unable to secure and follow a substantially gainful occupation and there is no affirmative evidence to the contrary, the Board is required to remand the claim for referral to the Director of Compensation Service to consider entitlement on an extraschedular basis. Id.; 38 C.F.R. § 4.16(b). After carefully reviewing the evidence, the Board finds that the Veteran's service-connected disabilities have not rendered him unemployable at any point during the appeal period. The Veteran submitted his original claim for compensation in December 2007. In a November 2007 VA mental health consult, he reported that he retired in 2003 from a job in computer systems. In February 2008, a VA PTSD examination report indicates that his PTSD was productive of transient or mild symptoms with decreased work efficiency, with an inability to perform occupational tasks only during periods of significant stress. The examiner noted that the Veteran retired from his last job "because of irritability." In a December 2008 correspondence, the Veteran reported that he retired in December 2003 when he felt "overwhelmed by stress and fatigue." In his May 2009 VA Form 9, he stated that he had been unable to work for the past five years due to his PTSD, and that his anxiety and panic attacks had increased as a result of therapy. (Vet Center records show that the Veteran received counselling until 2008 but do not provide specific findings regarding his occupational impairment.) In March 2016, the Veteran underwent VA examinations for his PTSD and service-connected skin disorder. The PTSD examination report indicates that his PTSD was productive of occupational impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily. The Veteran reported that he held a Master's degree and that he last worked in 2003, when he retired with the title of Financial Solutions Manager, overseeing five employees. He noted that his work record was "good" but that he was "fatiguing" from his work roles and from a situation in which he refused to obey an order to terminate a subordinate. The examiner identified specific symptoms of depressed mood, chronic sleep impairment, and disturbances of motivation and mood. With respect to the Veteran's skin disorder, no occupational impairment was noted. On review, none of the lay or medical evidence of record demonstrates that the Veteran has been unable to secure and follow a substantially gainful occupation as the result of service-connected disabilities at any time during the appeal period. The Veteran has indeed been unemployed since 2003, and the Board acknowledges his reports that his PTSD interfered with work and that his "irritability" contributed to his decision to retire. He is certainly competent to report these facts, as well as his symptoms, and the Board finds his statements credible. Moreover, the VA examination reports of record are consistent with some occupational impairment due to PTSD. However, the Board reiterates that mere unemployment is not enough to justify a referral under 38 C.F.R. § 4.16(b). In fact, retiring from a job does not represent uemployability. See Bankhead v. Shulkin, 29 Vet. App. 10, 24 (2017). Rather, the question is whether the Veteran's service-connected disorders render him incapable of "performing the physical and mental acts required" to be employed. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). In this regard, the record contains no evidence of psychosis, cognitive impairment, violent behavior, or other psychiatric symptoms that result in the Veteran being unable to secure and follow a substantially gainful occupation. Notably, the Veteran has never alleged that he was fired due to his PTSD symptomatology, nor has he reported being denied work due to these symptoms. Significantly, the VA examination reports of record reflect that his PTSD resulted in occupational impairment manifested by no more than an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Moreover, there is no evidence that his service-connected skin disorder has any impact on his employability. In sum, the evidence deemed most probative by the Board establishes that, while the Veteran's service-connected disabilities (particularly his PTSD) impacts his employability, such disabilities do not render him unemployable. Therefore, referral for consideration of a TDIU on an extraschedular basis is not warranted. As the preponderance of the evidence is against the claim discussed above, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. §§ 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (CONTINUED ON NEXT PAGE) ORDER Entitlement to a TDIU due to service-connected disabilities is denied. ____________________________________________ YVETTE R. WHITE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs