Citation Nr: 1802621 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-09 584 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). ORDER Entitlement to TDIU is denied. FINDING OF FACT The Veteran's service-connected disability does not preclude gainful employment consistent with his education and occupational experience. CONCLUSION OF LAW The criteria for the grant of TDIU have not been met. 38 U.S.C. §§ 5110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty from November 1968 to April 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In a May 2016 decision, the Board increased the Veteran's disability rating for post-traumatic stress disorder (PTSD) from 50 percent to 70 percent. In the same decision, the Board noted that entitlement to TDIU has been raised by the record. See November 2015 VA examination report. Accordingly, the Board considered the issue of TDIU to be part and parcel of the appeal for an increased rating, and remanded the issue of TDIU for further development. See Rice v. Shinseki, 22 Vet.App. 447 (2009). As part of the May 2016 remand, the Board directed the RO to provide the Veteran with VCAA notice for a TDIU claim and ask him to fill out a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. The RO provided the VCAA and VA Form 21-8940 in letters dated September 6, 2016 and October 11, 2016. The RO has substantially complied with the May 2016 remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). The record does not reflect that any of the letters were returned as undeliverable. Thus, the Veteran is presumed to have received them. Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994). The Veteran has failed to respond to the letters, and did not mail in a filled-out VA Form 21-8940. As such, the Board will adjudicate the issue without that input. 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. 38 C.F.R. § 4.16 (2017). A finding of total disability is appropriate, "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340 (a)(1), 4.15 (2017). "Substantially gainful employment" is employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment is not considered substantially gainful employment. 38 C.F.R. § 4.16 (a) (2017). In Faust v. West, 13 Vet. App. 342 (2000), the Court defined "substantially gainful employment" as "an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the veteran actually works and without regard to the veteran's earned annual income. . . ." A claim for TDIU "presupposes that the rating for the [service-connected] condition is less than 100 percent, and only asks for TDIU because of 'subjective' factors that the 'objective' rating does not consider." Vettese v. Brown, 7 Vet App. 31 (1994). In evaluating a Veteran's employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017). For a Veteran to prevail on a total rating claim based on individual unemployability, the record must reflect some factor that takes the claimant's case outside the norm. The sole fact that a Veteran is unemployed or has difficulty finding employment is not enough, since a high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment; the question is whether the claimant is capable of performing the physical and mental acts required for employment, not whether the claimant can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). TDIU 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 disability. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). The regulation further provides that if there is only one such disability, it must be rated at 60 percent or more; and 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. 38 C.F.R. § 4.16 (a) (2017). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disability 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 (2017). In any event, it is the policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service connected disability shall be rated totally disabled. 38 C.F.R. § 4.16 (b) (2017). Thus, if a Veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16 (a), an extraschedular rating is still for consideration where the Veteran is unemployable due to service-connected disability. 38 C.F.R. § 4.16 (b) (2017); see also Fanning v. Brown, 4 Vet. App. 225 (1993). The Board, however, does not have the authority to make such an assignment in the first instance. Rather, the Board may only grant a total rating under section 4.16(b) after the issue of extraschedular consideration has been first referred to and denied by VBA's Director of Compensation and Pension Service. In the present case, the Veteran is service-connected for PTSD, at 70 percent. Therefore, the Veteran meets the criteria for schedular consideration of TDIU because his disabilities have a combined rating of 70 percent, and he has one disability rated at 60 percent or higher. However, the sole fact that the Veteran is unemployed or may have difficulty obtaining employment is not enough to render him unable to sustain substantially gainful employment. Here, the Board finds that the Veteran is not prevented from securing or following substantially gainful employment due to his service-connected disability. The August 2002 VA examiner diagnosed the Veteran with polysubstance abuse, a history of a single manic episode, PTSD, and an antisocial personality traits with a GAF score of 42. The Veteran told the examiner that he graduated from high school. The Veteran related that he has moved a lot, lived in his truck, and was looking for a job. The examiner noted an unsteady work history. The Veteran stated that after he returned from Vietnam "you had to be black or a woman to get a job." See August 2002 VA examination. The May 2003 VA examiner stated that the Veteran was admitted to a VA Medical Center (VAMC) in November 2002. The examiner noted that the Veteran was a high school graduate, and that he last worked a steady job the previous year in Florida, in painting and construction. The Veteran told the examiner that the longest job he's held lasted six months, and was a painting job about two years ago. The Veteran related that he supported himself by doing odd job and with his VA compensation. The examiner stated that the Veteran's GAF was 52. See May 2003 VA examination. The Veteran underwent another VA examination in August 2011. The examiner diagnosed the Veteran with mild PTSD, polysubstance dependence, substance-induced mood disorder, and anti-social personality disorder. The examiner noted a GAF of 54-58, indicative of moderate symptoms or moderate difficulty in social and occupational functioning. The examiner noted that the Veteran experienced reduced reliability and productivity. The examiner noted that it was impossible to differentiate what symptoms were attributable to each diagnosis. The Veteran told the examiner that he was a self-employed painter until about a year and a half before the examination (2010), and now worked for a custom cabinet company as a painter. The Veteran stated that while this was a full-time job, he often did not have enough work to occupy him and hated "standing around." The Veteran also reported occasional difficulties concentrating at work, and stated that he sometimes went in late and left early. The Veteran denied any mental health care for the past few years and stated that his last hospitalization was "a long time ago." See August 2011 VA examination. The Veteran underwent another VA examination in November 2015. The examiner diagnosed the Veteran with severe alcohol use disorder, cannabis use disorder, unspecified personality disorder, and PTSD by history. The examiner noted that it was impossible to differentiate what symptoms were attributable to each diagnosis. The examiner opined that the level of occupational and social impairment due to all mental diagnoses was not severe enough either to interfere with occupational and social functioning, or to require continuous medication. The Veteran told the examiner that he last worked in 2013 or 2014. He related that he was last hospitalized for psychiatric issues "about 15 years ago." See November 2015 VA examination. VA treatment records from August 1999 to November 2016 showed treatment for various conditions, but offered no opinion as to the Veteran's PTSD affected his ability to secure and maintain gainful employment. A November 2003 medical note stated that the Veteran was "a drifter with no stable employment, was chief cook at headquarters for 10 months." In sum, the Board finds that the Veteran is not prevented from securing or following substantially gainful employment due to his service-connected disability. Namely, the November 2015 VA examiner opined that the Veteran's PTSD did not prevent him from obtaining or maintaining gainful employment, as his symptoms were not severe enough to interfere with employment. Furthermore, the Veteran apparently worked at least until 2013/2014. His current employment status is unknown, as he did not return the letter dated September 6, 2016, was sent to inform him of what evidence was required to complete processing of your appeal. Specifically, VA requested that the Veteran fill out VA Form 21-8940, Veteran's Application for Increased Compensation based on Unemployability in order to secure updated employment information in support of his pending appeal regarding this benefit. The Veteran failed to return the form or to respond to the letter in any way. As such, although the scheduler requirements for grant of this benefit have been met, the totality of the evidence fails to show that the Veteran's service-connected PTSD impedes his ability to secure and follow a substantially gainful occupation. Based on the evidence currently in the case file, entitlement to TDIU must be denied as the Veteran has not been shown to be unable to sustain substantially gainful employment as a result of his service-connected disability. The Board acknowledges that the Veteran is competent to report the symptoms of his disabilities. Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). As such, the Board recognizes that the Veteran has attested to having problems related to his PTSD. Notably, the Veteran underwent multiple VA examinations for his service-connected PTSD. All the VA examiners, however, denied that the Veteran's PTSD would have a large impact on his occupation, which the Veteran confirmed himself when he stated that he has had multiple jobs over the years and was capable of working full-time. Nevertheless, it is not the medical opinion of the physicians that is dispositive. Rather, the adjudicator must make a decision on the employability question based on the findings of the physicians and the entirety of the record. Moore v. Nicholson, 21 Vet. App. 211 (2007) (while the medical examiner provides a disability evaluation, the rating specialist interprets medical reports in order to match the rating with the disability). Given such, the Board finds that the preponderance of the evidence is against his claim. After separating from active service, the Veteran held multiple jobs as a painter, as reported that he was successful at his work. It was not until a 2002 statement that the Veteran related that he was unemployable specifically as a result of his PTSD impairment. In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. He has indicated that his PTSD prevents him from doing his usual occupation, thereby causing him to be unemployed. The Board acknowledges his belief that his symptoms are of such severity as to warrant a TDIU; however, the competent evidence of record does not show that he in unable to secure and follow a substantially gainful occupation by reason of his service-connected disability. While the Board does not wish to minimize the nature and extent of the Veteran's overall disability, and that the Veteran has problems associated with his service-connected PTSD, the basis of the current 70-percent rating, the evidence of record does not support his claim that his service-connected disability alone is sufficient to produce unemployability. Although it produces some impairment, the evidence does not reflect gainful employment is precluded solely due to the Veteran's service-connected PTSD. The Veteran has not identified or submitted any competent evidence demonstrating that his service-connected disability alone precludes him from securing and maintaining substantially gainful employment and entitles him to a TDIU. Indeed, based on his self-reported history of employment, coupled with service connected disability that at best only hinders his interpersonal abilities, and without consideration of his age, the Board finds that the Veteran would be able to work. Thus, for all the foregoing reasons, the Board finds that entitlement to a TDIU is not warranted, and the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990), 38 C.F.R. § 3.340 (2017). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet.App. 366, 369-77 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In sum, the record does not demonstrate that the Veteran's service-connected disability, in and of itself, is of such severity as to preclude his participation in substantially gainful employment, or that he was unemployable due to such. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not applicable. Accordingly, the Board finds that TDIU must be denied. 38 C.F.R. § 4.16 (a) (2017). ____________________________________________ YVETTE R. WHITE Veterans Law Judge, Board of Veterans' Appeals ATTORNEY FOR THE BOARD A. Lech, Counsel Copy mailed to: Florida Department of Veterans Affairs Department of Veterans Affairs