Citation Nr: 1753536	
Decision Date: 11/21/17    Archive Date: 12/01/17

DOCKET NO.  07-21 378	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUE

Entitlement to a total disability rating based on individual unemployability (TDIU) due to service connected disabilities.


REPRESENTATION

Veteran represented by: Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

A. Snoparsky, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Army from June 1968 to May 1971.

This matter is before the Board of Veterans' Appeals (Board) on appeal from an September 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.

This case was previously before the Board in February 2017 and was remanded for further development, in particular, to refer the Veteran's claim for TDIU to the Director of Compensation and Pension Service (Director) for consideration of whether a TDIU was warranted on an extraschedular basis.

The claims file is now entirely in VA's secure electronic processing system, Virtual VA and Veterans Benefits Management System (VBMS).


FINDING OF FACT

The Veteran's service-connected disabilities do not render him unable to secure or follow substantially gainful employment.


CONCLUSION OF LAW

The criteria are not met to establish a TDIU.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102 , 3.159, 4.1, 4.3, 4.15, 4.16(b), 4.18, 4.19 (2016).

REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duty to Assist and to Notify

Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist.  See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the Veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).

II.  TDIU 

A.  Legal Criteria

Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation.  Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2016).  In reaching such a determination, 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).  The fact that a veteran is unemployed or has difficulty obtaining employment is not enough to warrant a TDIU.  See Van Hoose v. Brown, 4 Vet. App 361.  

The law provides that a total disability rating may be assigned where the schedular rating is less than total when the disabled person 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, this disability shall be ratable at 60 percent or more, or 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.  See 38 C.F.R. § 4.16(a) (2016).

Where these criteria are not met, but the Veteran is nevertheless unemployable by reason of service-connected disabilities, VA shall submit the case to the Director of Compensation Service for consideration as to whether a TDIU may be awarded on an extraschedular basis.  38 C.F.R. § 4.16(b).

Provided a veteran does not meet these minimum percentage rating requirements of § 4.16(a) for consideration of a TDIU, he may still be entitled to this benefit on an extra-schedular basis under § 4.16(b) if it is established he is indeed unemployable on account of his service-connected disabilities.  It is the established policy of VA 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.  If the record supports the claim, the Board must first forward the case to the Director of the Compensation Service for extraschedular consideration. The Board upon receipt of that determination is not bound to accept it, and may resolve the question of extraschedular entitlement of its own accord.  See Wages v. McDonald, 27 Vet. App. 233, 236 (2015) (the findings of the Director of Compensation Service on extraschedular consideration are not evidence, but rather a decision of the Agency of Original Jurisdiction (AOJ) reviewed de novo by the Board). 

The degree of impairment in occupational functioning that is generally deemed indicative of unemployability consists of a showing that the veteran is "[in]capable of performing the physical and mental acts required by employment," and is not based solely on whether he is unemployed or has difficulty obtaining employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993).  Rather, the record must demonstrate some factor that takes his situation outside the norm since the VA Rating Schedule already is designed to take into consideration impairment that renders it difficult to obtain and keep employment. Id. see also 38 C.F.R. §§ 4.1, 4.15. 

In evaluating a claim for a TDIU, the critical inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to cause unemployability.  See 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; see also Ferraro v. Derwinski, 1 Vet. App. 326, 331-32 (1991).  By comparison, the impact of any nonservice-connected disabilities, or his advancing age, are not factors taken into consideration for this purpose.  38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19.

In addition, "marginal employment" shall not be considered substantially gainful employment.  38 C.F.R. § 4.16 (a).  See Faust v. West, 13 Vet. App. 342, 355 (2000).  Substantially gainful employment is that "at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the Veteran resides."  Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991), citing to VA Adjudication Procedure Manual, M21-1 (since updated at Part IV.ii.2.F.1.c (Nov. 9, 2015)).  See also Ferraro, 1 Vet. App. at 332 (determining that substantially gainful employment suggests "a living wage"). 

Where reasonably raised by the facts of a particular case, the Board must address the issue of whether the Veteran's ability to work might be limited to marginal employment and, when appropriate, explain why the evidence does not demonstrate that the veteran is incapable of more than marginal employment.  See Ortiz-Valles v. McDonald, 28 Vet. App. 65, 71 (2016).

III.  Merits of the Claim

The Veteran contends he is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities, including his PTSD.  The Veteran is rated as 60 percent disabled due to his PTSD and diabetes mellitus, type II with his PTSD rated as 50 percent disabling and his diabetes mellitus type II rated as 20 percent disabling.  Therefore, the Veteran does not meet the disability percentage requirements for consideration of a TDIU on a schedular basis pursuant to 38 C.F.R. §4.16(a).  However, the Board will consider whether the Veteran should be awarded a TDIU on an extraschedular basis.

In April 2017, the Director of Compensation and Pension Services did not recommend the Veteran be awarded a TDIU on an extraschedular basis.  The Veteran had worked for the United States Postal Service (USPS) for over 30 years.  The Director stated that the evidence in the Veteran's file did not show that the Veteran missed work, change his positions, or retired because of his service-connected disabilities.  The Director went on to note that while it was clear the Veteran continued to seek treatment for his service-connected disabilities, the evidence showed the Veteran experienced mild to moderate PTSD symptoms with no suicidal or homicidal ideations, no hallucinations or delusions were noted.  The evidence showed the Veteran was independent in functioning and had no significant cognitive deficits.  

In July 2006, the Veteran submitted a statement saying that he could not return to school, even though he had tried, due to his PTSD.

The Veteran was seen in May 2007 for his mental health.  The examiner noted the Veteran planned to retire on July 1, 2007 after working for the USPS for over thirty years.  The Veteran stated he was having problems focusing and was having short-term memory problems.  The Veteran described himself as a workaholic and was concerned what he would do once he retired.  

The Veteran was seen again for his mental health in June 2007.  The Veteran stated that he felt a similar sense of foreboding and doom that he had when ending his service in Vietnam because he was preparing to retire from his job at the USPS.  The Veteran denied suicidal or ideations.

The Veteran submitted his application for TDIU in January 2012.  The Veteran indicated he had finished college and had theological training.  The Veteran stated his PTSD prevented him from securing or following substantially gainful employment.  The Veteran stated he had worked at the United States Post Office (USPS) as a postmaster until July 2007.  The Veteran next worked as a driver part-time for a few months from September 2010 to December 2010.  The Veteran stated he left his driving job because of his service-connected PTSD and that he had unsuccessfully attempted to obtain employment since that time.  The Veteran explained that the stress of driving people with disabilities and special needs as well as other disabled veterans aggravated his sleep disorder caused by his PTSD.  Because he has not been able to sleep, he had several potentially fatal accidents so he resigned before he hurt someone.

The Veteran had an examination for his PTSD in April 2012.  The Veteran stated he had last attempted to work as a driver but the job only lasted a few months because he was too afraid he was going to kill someone due to almost falling asleep at the wheel.  While the Veteran stated he got along with everyone at his previous job at the USPS, the examiner and the Veteran's spouse disagreed.

The Veteran submitted employment information in July 2012.  The Veteran stated that from September 2010 to December 2010, he worked as a part-time driver and resigned in December 2010.

The Veteran had an examination for his diabetes in August 2013.  The examiner noted the Veteran's diabetes did not impact his ability to work.

The Veteran was afforded another examination for his diabetes in March 2016.  The examiner opined that the Veteran's diabetes did not impact his ability to work.

The more probative evidence shows that the Veteran is not prevented from following substantial gainful employment as a result of his service-connected PTSD and diabetes.  The Board has carefully considered the Veteran's statements about how his service-connected disabilities impact his ability to maintain gainful employment, including his statements that he was left his last job because he was afraid that his PTSD induced sleep problem was going to cause a serious accident while driving.  The Board also acknowledges the statements made by the Veteran's mental health providers, saying that the Veteran is not the easy to get along with at work.  However, the preponderance of the evidence does not indicate the Veteran is unable to secure or follow substantially gainful employment.  Two examiners opined the Veteran's diabetes did not interfere with his ability to work (See August 2013 and March 2016 examinations).  Additionally, the Director of Compensation Services did not recommend a TDIU on an extraschedular basis for the Veteran.

While there is mention of his ability to get along with others, short-term memory problems, and concerns with driving, there is no indication that any of these things would prevent the Veteran from performing sedentary, non-driving related tasks, given his advanced education level.  Lastly, none of the mental health providers or examiners has opined that the Veteran is unable to secure or follow gainful employment due to his service-connected disabilities.  Because of the reasons mentioned above, the Veteran's claim for a TDIU on an extraschedular basis must be denied.

The Board has considered the applicability of the benefit of the doubt doctrine.  Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine does not apply.  See 38 U.S.C.A. §5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57(1990).  


ORDER

A TDIU is denied.




____________________________________________
Cynthia M. Bruce
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs