Citation Nr: 1804396 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 10-00 243 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs ATTORNEY FOR THE BOARD A. Labi, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1965 to October 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the VA Regional Office (RO) in Nashville, Tennessee. This issue was previously before the board in June 2011 when the Board determined that the issue of entitlement to TDIU was raised by the record during the Veteran's previously appealed increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board remanded the issue of TDIU, inter alia, for further development. In November 2012, the Board granted a 50 percent rating for the Veteran's depressive disorder and remanded the claims for a compensable rating for left ear hearing loss and for a TDIU for further development and for compliance with the June 2011 remand. In July 2015, the Board remanded the issue of entitlement to TDIU finding that it was inextricably intertwined with the reduction issue related to the Veteran's claim for depressive disorder pending at the AOJ. The issue was remanded for readjudication. The Board finds that there has been substantial compliance with its remand. See Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The Veteran's service-connected disabilities alone do not prevent him from securing and following a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 4.3, 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Schedular awards of TDIU are governed, in part, by 38 C.F.R. § 4.16(a) (2017). Under that regulation, total disability ratings for compensation can be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, 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, the disability must be ratable at 60 percent or more, and that, 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 also 38 C.F.R. §§ 3.340, 3.341 (2017). If those percentages are not met, a TDIU can still be awarded on an extraschedular basis under 38 C.F.R. § 4.16(b). The subsection addressing the extraschedular basis provides that 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. Therefore, rating boards should submit to the Director, Compensation Service, for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph(a) of this section. The rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Thus, the Board may not consider the effects of the Veteran's nonservice-connected disabilities on his ability to function. Service-connection has been established for a depressive disorder, evaluated as 50 percent disabling, tinnitus, evaluated as 10 percent disabling, and left ear hearing loss, assigned a noncompensable rating. The Veteran has a current combined disability rating of 60 percent. Thus, the Veteran does not meet the schedular requirements for a TDIU under 38 C.F.R. § 4.16(a). With regard to whether the Veteran is entitled to TDIU pursuant to 38 C.F.R. § 4.16(b), the Board has no authority to award TDIU under § 4.16(b) in the first instance. Rather, the rating board must submit to the Director, Compensation and Pension Service for extraschedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). Bowling v. Principi, 15 Vet. App. 1, 10 (2001). If the Director denies the extraschedular TDIU, the Board has jurisdiction to grant or deny the appeal, or remand for additional development and the Director's decision is the same as the RO's as far as the Board's jurisdiction and standard of review. Wages v. McDonald, 27 Vet. App. 233, 238 (2015). In determining employability for VA purposes, consideration is given to the level of education, special training, and work experience, but not to age or nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16(a), 4.19; see also Faust v. West, 13 Vet. App. 342 (2000). The question is whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). The Veteran does not have to be 100 percent unemployable in order to be entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). When there is an approximate balance of positive and negative evidence as to any issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107. "Substantially gainful employment" is that 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 v. Derwinski, 1 Vet. App. 356, 358 (1991). As further provided by 38 C.F.R. § 4.16(a), "marginal employment shall not be considered substantially gainful employment." The Veteran contends that his service-connected disabilities prevent him from seeking, gaining, and maintaining meaningful, gainful employment. However, the Board finds that the preponderance of the evidence is against a finding that his service-connected disabilities, alone, preclude his participation in a substantially gainful occupation; therefore referral for extraschedular consideration is not warranted. As noted above, the Veteran's claim was determined to have been raised by the record in the Board's June 2011 decision. The record indicates that the Veteran earned his GED after service and attended two years of college. His vocational history consists of working as a sheet metal mechanic, heating and air conditioning repair, bus driver, and a taxi cab dispatcher. In a January 2001 VA examination for mental disorders, the Veteran reported that he had been working at the same place for over two years, was not fired from his job and did not miss any work, "except when he is at work he gets very nervous." In a June 2007 VA examination for mental disorders, the Veteran indicated that he has been unemployed since March 2007 and was applying for Social Security. In VA treatment records from May 2008, the Veteran reported his occupation as a sheet metal mechanic, and the record notes that he "works as he wants" and was receiving Social Security benefits. The Veteran underwent a December 2008 VA examination for mental disorders. The report indicates that the Veteran reported that he quit working in March 2007 because he was "fed up" and "that no one at work could please him and it was 'my way or no way.'" He reported getting into verbal fights at work with coworkers but that he had no problems with the management. He had been at this job for one year and had not worked since then. He reported that his previous job lasted about ten years until that company went out of business. The examiner notes that "although he is not employed, it is thought that he would have at least moderate impairment from an occupational viewpoint." In June 2011, a Social Security Administration (SSA) electronic inquiry shows that records were requested from SSA. However, the record indicates that the medical records were unavailable and further efforts to obtain them would be futile. The form notes that there are no medical records, and that "the person did not file for disability benefits or the person filed for disability benefits but no medical records were obtained." The Veteran underwent a VA examination for mental disorders in June 2011. The examination report indicates that the Veteran reported that he stopped working because the business closed and that he was age 62 so he decided to retire. The examiner noted that the Veteran is not unable to work and noted that the Veteran could "be trained as a MSA or PSA for instance. His mental ability remains intact." The Veteran underwent a general VA examination in June 2011. The examiner noted that the Veteran has a high school education and opined that there are no service-connected medical problems that would prevent his employment in any capacity. The examiner explained that the opinion was based on his training and experience and on the Veteran's history and physical examination as well as a review of the records. The Board previously noted that the VA examiner did not specifically address the type of employment in which the Veteran would be capable of engaging and remanded for a new examination. The Veteran underwent a VA audio examination in July 2011. The examiner opined that the Veteran's service-connected hearing loss alone should not be a barrier to a wide range of employment settings. The examiner explained that many individuals with the Veteran's degree of hearing loss function well in many occupational settings. The examiner noted that the Veteran's hearing loss may cause the Veteran to have trouble working in very noisy environments, in environments which required him to "often use non face-to-face communications equipment", or in jobs requiring a great deal of attention to high pitched sounds. In April 2013, the Veteran underwent a VA Social and Industrial Survey examination. The report indicates that the Veteran worked as a heating and air conditioning repair man and retired in March 2007. He stated that "as long as he and his co-worker worked on opposite ends of the house doing their own job things went well but he could not work side by side with anyone." The social worker opined that the Veteran's service-connected disabilities directly impacted and continue to impact his social and occupational functioning. The examiner recommended that the Veteran be awarded unemployability. The Veteran underwent a VA examination for mental disorders in September 2014 conducted by a psychologist. The report indicates that after service the Veteran worked as a city bus driver for 4 years and then worked in heating and air conditioning until retirement. He reported no problems with being fired from jobs or trouble at work. The psychologist noted that the Veteran's occupations were all mostly solitary and that since the Veteran's retirement he has not worked in either paid employment or volunteer work. The examiner noted that the Veteran showed no signs of major depressive disorder but met criteria for schizoid personality disorder. The examiner noted that the Veteran's schizoid personality disorder may impact his ability to work with others but that the Veteran successfully worked for many years and could continue to do similar solitary work successfully. The examiner noted that the Veteran's ability to respond appropriately to coworkers, supervisors, or the general public is considered moderately impaired by schizoid personality disorder and suggested that he would do best at more solitary non-public facing independent tasks that can be done with minimal supervision such as truck driving. The Board notes that the Veteran is not service-connected for schizoid personality disorder. In March 2015, the Veteran underwent a VA examination for mental disorders. The report indicates that the Veteran reported that he last worked in heating and air conditioning 8 years prior and that the Veteran reported that he "got tired of being around them so basically I quit after I got social security at age 62." The examiner noted that major depressive disorder was no longer evident and that there was no evidence of any social or occupational impairment due to depression. The examiner noted that the Veteran has a mental condition which had been formally diagnosed, but symptoms are not severe enough to interfere with occupational and social functioning or to require continuous medication. The examiner noted that there is no evidence of any depression symptoms at the current time (in full sustained remission) which would cause social or occupational impairment. Alcohol use is mild and does not cause significant social or occupational impairment at the current reported level. Schizoid personality disorder would impact the ability to work closely with co-workers or supervisors but does not prevent him from working in a more solitary position. The Board notes that in April 2015 the Veteran requested a hearing to provide testimony regarding the proposed reduction of his service-connected depressive disorder. No immediate action was taken by the RO until June 2017 when the RO contacted the Veteran regarding his request. The Veteran opted to undergo a VA examination in lieu of a hearing, as such the hearing request was canceled and the Veteran underwent a VA examination in July 2017. The Veteran underwent a VA examination for mental disorders in July 2017. The report indicates a diagnosis of major depression, chronic. The report indicates occupational and social impairment with reduced reliability and productivity due to his diagnosed major depression. Based on a review of the medical findings, the Board finds that the preponderance of the evidence indicates that the Veteran's service-connected disabilities do not prohibit the Veteran from securing and following gainful employment. While the Veteran's April 2013 Social and Industrial examination report indicates that the examiner opined that the Veteran was unemployable and that his service-connected disabilities directly impacted and continue to impact his social and occupational functioning, the examiner did not fully explain how they affect the Veteran and to what extent they affect him and did not explain whether there are any occupations that the Veteran would be capable of performing. The remaining medical examinations noted at most moderate occupational impairment but did not indicate that the Veteran was incapable of securing or maintaining any meaningful employment. The Veteran's July 2011 VA examination indicated that his service-connected hearing loss is not a barrier to a wide-range of employment settings. The Veteran's most recent examinations do not indicate that the Veteran is unable to secure or maintain meaningful employment. The September 2014 VA examination indicates that the Veteran can work, recommending mostly solitary work. The March 2015 examination noted that the Veteran's symptoms of a diagnosed mental condition are not severe enough to interfere with his occupational functioning, and the July 2017 VA examination only indicates occupational and social impairment with reduced reliability and productivity due to his diagnosed major depression. Weighing the competent medical evidence, the Board finds that the July 2011, September 2014, March 2015, and July 2017 VA examinations outweigh the April 2013 opinion. The Board acknowledges that the Veteran is currently unemployed. However, as discussed above, he indicated during multiple examinations that he voluntarily retired when his previous job ended. The Veteran has not submitted any statements indicating that he has been unable to work or that he is unable to secure and follow employment solely due to his service-connected depressive disorder, left ear hearing loss, or tinnitus. There is nothing in the record showing that the Veteran attempted to secure any type of employment since voluntarily leaving his previously employment. Absent the minimum percentage requirements for basic eligibility for TDIU pursuant to 38 C.F.R. § 4.16(a) being met, and given that the preponderance of the evidence discussed above shows that the Veteran's service-connected disabilities do not render him unable to engage in employment, the Board concludes that referral of this matter for extraschedular consideration is not indicated. The preponderance of the evidence is against this claim for entitlement to TDIU. Therefore, there is no reasonable doubt to be resolved. The appeal for this matter must be denied. 38 U.S.C. § 5107(b), 38 C.F.R. § 4.3. (CONTINUED ON NEXT PAGE) ORDER Entitlement to a TDIU is denied. ____________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs