Citation Nr: 18139959 Decision Date: 10/01/18 Archive Date: 10/01/18 DOCKET NO. 10-26 127 DATE: October 1, 2018 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDING OF FACT The Veteran’s service-connected disability did not prevent him from securing or following a substantially gainful occupation in the applicable period. CONCLUSION OF LAW The criteria for entitlement to TDIU have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from October 1973 to February 1976. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from May 2007 and March 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In a February 2014 decision, the Board denied the above claim. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a May 2015 Memorandum Decision, the Court vacated and remanded the Board’s decision with respect to a claim for entitlement to service connection for an acquired psychiatric disorder and TDIU. On April 23, 2018, the RO issued a rating decision granting entitlement to service connection for an unspecified depressive disorder; however; TDIU was again denied. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The Board remanded the Veteran’s claim in October 2015, May 2017, October 2017, and February 2018 for additional development which has now been substantially completed. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). In August 2013, the Veteran testified before the undersigned in a Travel Board hearing held at the RO. A transcript of the hearing is in the electronic record. Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert. denied, U.S.C. Oct.3, 2016) (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 [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) The Veteran is claiming entitlement to a TDIU, asserting that his disabilities prevent him from gaining and maintaining suitable employment. When considering a TDIU, the overriding issue is unemployability, not unemployment. The sole fact that a veteran is unemployed for non-service- connected reasons, or has difficulty obtaining employment because of economic circumstances, is not enough for a TDIU grant. A high schedular rating, in itself, is recognition that the impairment makes it difficult to obtain and retain employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can, in fact, find employment. See 38 C.F.R. §§ 4.1, 4.15. As noted, the Veteran’s service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to his age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Veteran’s employment history, his educational and vocational attainment, and his particular disabilities are to be considered in making a determination on unemployability. As noted, consideration may not be given to the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. However, when it is not possible to separate the effects of a non-service-connected condition from those of a service-connected disorder, reasonable doubt should be resolved in the claimant’s favor with regard to the question of whether certain signs and symptoms can be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998); see also 38 C.F.R. § 3.10. In discussing the unemployability criteria, the United States Court of Appeals for Veterans Claims (Court) has indicated that, in essence, the unemployability question, that is, the veteran’s ability or inability to engage in substantial gainful activity, has to be looked at in a practical manner, and that the thrust is whether a particular job is realistically within the capabilities, both physical and mental, of the appellant. See Moore v. Derwinski, 1 Vet. App. 83 (1991). The VA General Counsel has concluded that VA regulations generally provide that veterans who, in light of their individual circumstances, but without regard to age, are unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities shall be rated as totally disabled, without regard to whether an average person would be rendered unemployable by such circumstances. Thus, the criteria include a subjective standard. It was also held that unemployability is synonymous with the inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91 (1991). As noted above, in determining whether the veteran is entitled to individual unemployability, neither his non-service-connected disabilities nor his advancing age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Thus, in deciding the claim, the Board may not favorably consider the effects of the non-service-connected disabilities with respect to their degree of interference with his employability. Indeed, the Court stated that in order for a veteran to prevail on a claim for TDIU, the record must reflect some factor which takes his case outside of the norm. The sole fact that he is unemployed or has difficulty obtaining employment is not enough. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Van Hoose v. Brown, supra. If total industrial impairment has not been shown, the VA is not obligated to show that a veteran is incapable of performing specific jobs in considering a claim for a total rating based on individual unemployability. See Gary v. Brown, 7 Vet. App. 229 (1994). Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Schedular TDIU A total disability rating for individual unemployability may be granted where the schedular rating is less than total and the service-connected disabilities preclude the veteran from obtaining or maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. 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). The Veteran has one service connected disability: unspecified depressive disorder, with a 50 percent evaluation since the effective date of service connection of September 24, 2006. Because no single service-connected disability has been rated 60 percent or higher during the period at issue, under the 38 C.F.R. § 4.16(a) criteria outlined above, the Veteran does not meet the schedular criteria for a schedular TDIU rating. Consequently, a TDIU rating on a schedular basis, under 38 C.F.R. § 4.16(a), is not warranted for the applicable period. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Extraschedular TDIU If the above percentage thresholds are not met, the Veteran’s claim may still be referred to the Director, Compensation Service for consideration of an extraschedular rating, when the evidence of record shows that Veteran is “unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities.” 38 C.F.R. § 4.16(b). As mentioned previously, the Veteran’s sole service connected disability is unspecified depressive disorder at an evaluation of 50 percent granted in an April 2018 rating decision, effective since September 24, 2006, the initial date of claim. The Veteran has no other service connected disabilities at the time of this decision. The Veteran’s application for a TDIU indicates that he is a high school graduate with two years of post-high school education, though not a formal college degree. The Veteran cites his post-service occupations as janitorial work, surveying, and a technician for a state department of transportation, and that he last worked in August 2003. The Veteran cited disabilities of his diagnosed (but not service connected) diabetes mellitus and cardiovascular disease, along with PTSD, since diagnosed as a depressive disorder, as the reasons that prevent him from securing or following any substantially gainful occupation. The Board notes from the medical records as recent as April 2018 that the Veteran left his last position in 2003 because he was cited for driving under the influence and was therefore unable to maintain a driver’s license, a prerequisite for his last position of employment with a state department of transportation. During the Veteran’s hearing with the undersigned VLJ in August 2013, the Veteran asserted he can no longer do manual labor because of his mental and physical limitations. The Veteran discussed his diabetes, cardiovascular disease, and claimed mental disorders, and also noted for the record he had a history of previous incarceration along with alcohol and drug abuse. The Veteran received a VA examination for his mental disorders in June 2016. The examiner noted a diagnosis of unspecified depressive disorder and characterized the Veteran’s occupational and social impairment as that of reduced reliability and productivity. The examiner noted the Veteran is sometimes argumentative but is generally no more than mild to moderate in impairment of social adjustment. The examiner noted the Veteran was unemployed at the time due to his physical issues, and that his current levels of depression and anxiety with irritability and insomnia would not be expected to cause more than mild impairment of occupational reliability and productivity. The Veteran received a VA examination that considered PTSD along with other mental disorders in April 2018. Here, this examiner, different than the June 2016 examiner, also diagnosed unspecified depressive disorder, and no other mental disorder, with occupational and social impairment with reduced reliability and productivity. This examiner noted that she concurred with the previous examiner regarding the Veteran’s unemployed status being due to his physical ailments. This examiner noted the Veteran had lost his driver’s license to a charge of driving under the influence in 2003 but undertakes the activities of daily living regularly and lives alone in government-provided accomodation, with contact from VA social workers. This examiner also noted the Veteran had legal problems after his discharge, compounded by polysubstance abuse problems, that have affected his post-service employment. VA treatment notes just prior to this examination, from February and March 2018, indicate the Veteran has been noncompliant in his own health care and had not been seen in over a year by his primary care physician. The effects of the Veteran’s service-connected depressive disorder may very well result in some occupational impairment. However, such interference is contemplated in the currently-assigned rating for the Veteran’s service-connected disability, and the weight of the evidence does not demonstrate total occupational impairment associated with the service-connected psychiatric disorder. The Board notes and acknowledges the limitations of the Veteran’s diagnosed diabetes and associated neuropathies, his lumbar back degenerative disc disease, and his cardiovascular disease. However, those physical disabilities are not service-connected, and are thus not pertinent to the Veteran’s claim for a TDIU. In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to his age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; see Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Based on the foregoing, the Board finds that referral to the Director of Compensation Service for consideration of TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b) is not warranted because the most credible, competent, and probative evidence of record does not reflect that the Veteran is unable to follow or secure substantially gainful employment due his service-connected disability. See also Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Setter, Associate Counsel