Citation Nr: 18144700 Decision Date: 10/25/18 Archive Date: 10/24/18 DOCKET NO. 07-13 467A DATE: October 25, 2018 ORDER A total disability rating based on individual unemployability (TDIU) prior to October 14, 2010 is denied. FINDING OF FACT Prior to October 14, 2010, the Veteran’s service-connected disabilities did not render him unable to secure or follow substantially gainful employment or cause him to engage in only marginal employment. CONCLUSION OF LAW The criteria for a TDIU prior to October 14, 2010 have not been satisfied. U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1982 to January 2006 in the United States Air Force. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The claim arose pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). In September 2010 and May 2011, the Board remanded the claim for further development. In February 2017, the RO granted a TDIU from October 14, 2010 onward. In August 2017, the Board denied a TDIU prior to October 14, 2010. In May 2018, the United States Court of Appeals for Veterans Claims (Court) vacated the August 2017 Board decision and remanded the matter to the Board for development consistent with the parties' Joint Motion for Remand (Joint Motion). TDIU prior to October 14, 2010 VA will grant a TDIU when the evidence shows that the Veteran is precluded, by reason of his service connected disabilities, from obtaining or maintaining “substantially gainful employment” consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). 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). A threshold requirement for eligibility for a TDIU under 38 C.F.R. § 4.16(a) is that if there is only one such disability, it must be rated at 60 percent or more; 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. For the portion of the appeal prior to October 14, 2010, the minimum schedular criteria had not been met. The Veteran’s service-connected disabilities for this time period consisted of the following: anxiety disorder/stuttering (30 percent disabling); lumbar spine disability (10 percent disabling); hypertension (10 percent disabling); acne (10 percent disabling); right hip strain (10 percent disabling); right hand knuckle fracture (noncompensable); right hip disability based on limited flexion (noncompensable); and right hip disability based on impairment of the thigh (noncompensable). His combined rating was 50 percent prior to October 14, 2010. It is VA's policy that all Veterans who are unable to secure a substantially gainful occupation by reason of service-connected disabilities “shall be rated totally disabled.” See 38 C.F.R. § 4.16(b). The Court has held that the Board has no power to award a TDIU under 38 C.F.R. § 4.16(b) in the first instance without ensuring that the claim is referred to VA's Director, Compensation Service (Director) for consideration of an “extraschedular rating” under 38 C.F.R. § 4.16(b). Bowling v. Principi, 15 Vet. App. 1, 10 (2001). While there has been no referral to VA's Director, Compensation Service, the Board will consider whether a remand for such referral is warranted. The Board must determine whether the Veteran's service-connected disabilities precluded him from engaging in substantially gainful employment prior to October 14, 2010 (work that is more than marginal, which permits the individual to earn a “living wage.”) Moore v. Derwinski, 1 Vet. App. 356 (1991). In doing so, the Board will consider the Court’s May 2018 Joint Motion, which vacated the August 2017 decision because the Board had not considered whether the Veteran was marginally employed. Citing an April 2016 Application for Increased Compensation based on Unemployability, the parties noted that since his 2006 military discharge, the Veteran had been working on his family ranch for approximately 47 hours per week. On the form, he responded “N/A” when asked about his monthly earned income for that position. The parties directed the Board to discuss whether he was marginally employed based on the April 2016 application. The record shows the Veteran completed high school and two years of college. Following his military discharge in 2006, he worked with his father at the family ranch raising cattle and performing farm work. He completed some vocational rehabilitation training in medical billing and coding after discharge. His resume indicates that his computer skills include experience in Microsoft Word, Power Point, Excel, and Access, and he can type over 45 words per minute. It also indicates experience in health services management, including processing forms, written correspondence, publications, and medical records in the military. On VA general examination in March 2006, there was no functional impairment from acne, and acne caused no lost time from work. His right hip disabilities caused stiffness, a lack of endurance, pain, and fatigue. They did not cause incapacitation. There was no functional impairment from the right hip disabilities, and they caused no lost time from work. The right knuckle disability caused no functional impairment or lost time from work. The lumbar spine disability caused stiffness, difficulty bending over, weakness, and pain. It did not cause incapacitation. There was no functional impairment from the lumbar spine disability, and it caused no lost time from work. Hypertension caused shortness of breath, dizziness, and headaches. It caused no functional impairment or lost time from work. On physical examination, none of the service-connected disabilities caused any functional loss after repetitive use or during flare-ups due to pain, fatigue, weakness, a lack of endurance, or incoordination. At the conclusion of the report, the examiner stated that the effect of the conditions on daily activities was “mild.” On VA psychiatric examination in March 2006, the Veteran reported anxiety when thinking about going on job interviews because of his stuttering. His psychiatric symptoms had a moderate effect on total daily functioning, and caused significant impairment in work functioning due to avoidance of certain situations. His stuttering caused a mild to moderate effect on total daily functioning. He was assigned an overall Global Assessment of Functioning (GAF) score of 70, indicating mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, with some meaningful interpersonal relationships. See Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) at 44-47. A GAF score is probative as it relates directly to the veteran's level of impairment of social and industrial adaptability. See Massey v. Brown, 7 Vet. App. 204, 207 (1994). The examiner concluded that he had some interference in performing activities of daily living due to anxiety. He had difficulty establishing and maintaining effective work relationships because of anxiety, and he had stopped trying to advance his career due to anxiety. In March 2007, the Veteran was found to be entitled to vocational rehabilitation services. In the determination report, his service-connected disabilities were found to make a significant contribution to his employability impairment, and were major considerations in preventing him from gaining and sustaining suitable employment. In February 2009, the Veteran submitted a letter to vocational rehabilitation personnel, explaining that while he had begun training in medical coding, there were simply no available jobs in his area and could not move to a bigger city. He was caring for his aging parents, and that consumed a lot of time and energy. He indicated a desire to cease services. In March 2009 correspondence from vocational rehabilitation personnel to the Veteran, he was asked to reconsider participating in the program. The counselor opined, “you are more than capable of working to support yourself and your children.” In September 2009, the Veteran informed the vocational rehabilitation services that he wanted his case closed since there was nothing they could do for him given the employment opportunities in his area. The case was closed in September 2010 after attempts by the counselor to contact the Veteran went unanswered. VA examinations for the lumbar spine, hypertension, and the psychiatric disability were conducted on October 21, 2010, and October 14, 2010. Although the Veteran was already in receipt of a TDIU by that time, the examiners provided some findings pertinent to the prior 12 months, which is relevant to the period on appeal. On VA lumbar spine examination in October 2010, the Veteran reported that over the past 12 months, he worked around the pain and reported no lost time from work. The examiner noted that the severity of the disability was “minimal” and he had been able to perform heavy work as a rancher. On VA hypertension examination in October 2010, the Veteran reported being employed full-time as a rancher, and that he had no time lost from work over the past 12 months. On VA psychiatric examination in October 2010, the Veteran reported being employed full-time as a rancher, and that he had no time lost from work over the past 12 months. He reported he had gone on many interviews, but none resulted in other employment. His psychiatric problems caused difficulty with memory and focus while working on the ranch. He was assigned a GAF score of 60 over the past 12 months. The examiner noted that vocationally, he had applicable job skills but his difficulties could lead to workplace problems in communication. He was not found to be totally occupationally impaired. Treatment would be helpful and would likely increase his chances of employment in the general job sector. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the preponderance of the evidence is against the claim. Initially, to address the concerns of the Court in the Joint Motion, 38 C.F.R. § 4.16(a) provides that “marginal employment” shall not be considered substantially gainful employment. Marginal employment may be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. There is no standard articulated in the regulation as to the meaning of "protected" work. The dictionary defines the word "protect" as meaning "to maintain the status or integrity of especially through financial or legal guarantees" or "to provide a guard or shield." See MERRIAM-WEBSTER, https://www.merriam-webster.com/dictionary/protect (last visited May 23, 2018). In Cantrell v. Shulkin, 28 Vet. App. 382 (2017), the Court held that the term "protected environment" was ambiguous and noted that VA had declined to define it. The Court found that it could not uphold the Board’s reasons and bases for saying full-time employment as a park ranger was not sheltered employment absent a definition of that term. Without a definition of the phrase, or at the very least, a list of factors to consider, the Board could not provide a legally sustainable explanation to support a finding that the employment was other than a “protected environment.” Here, while development could be conducted on this matter, the Board finds that a remand is avoidable. Even assuming that the Veteran was only marginally employed in a protected environment prior to October 14, 2010, the preponderance of the evidence is against a finding that this was because of his service-connected disabilities. It is unclear whether the Veteran was still a rancher when the RO awarded a TDIU in February 2017, however, the claim was granted due to 2016 VA examination findings indicating that he could not work due to service-connected disabilities. The record prior to October 14, 2010, in contrast, did not show this. Prior to October 14, 2010 was capable of physical labor as shown by his work performing heavy labor on the ranch. He was capable of non-physical labor as well, as he had post-high school education, computer skills in various programs, and the ability to type over 45 words per minute. This level of education and these computer skills, combined with his occupational history in health records management, support a finding that he could perform non-physical employment. See Withers v. Wilkie, ___ Vet. App. ___, No. 16-1543 (August 10, 2018). Moreover, significantly, prior to October 14, 2010 there was no finding made by any examiner or treatment provider that the Veteran’s service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation, or caused him to engage in only marginal employment at the ranch. The March 2006 VA general examiner described the overall severity of his disabilities as “mild,” and none of his service-connected disabilities caused any functional impairment or lost time from work. The March 2006 psychiatric examiner found his symptoms impacted employability, but did not find total occupational impairment. The March 2009 vocational rehabilitation counselor specifically determined he was “more than capable of working.” VA examination reports from 2010 indicated no lost time from work due to service-connected disabilities. The GAF scores of 70 and 60 during this portion of the appeal do not reflect total occupational impairment and indicate only mild symptoms. Finally, to the extent the March 2007 determination of vocational rehabilitation eligibility supports the claim, it is outweighed by the volume of evidence just discussed. As the Court has stated, the record must reflect some factor that takes a particular case outside the norm in order for a claim for individual unemployability benefits to prevail. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The mere fact that a Veteran was unemployed or had difficulty obtaining employment is not enough. Id. The question is whether he was capable of performing the physical and mental acts required by employment, not whether he could find employment. Here, the record indicates that prior to October 14, 2010, the Veteran was not precluded or restricted from all forms of employment that may be considered substantially gainful. The Board has considered the Veteran’s own contentions that his service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation prior to October 14, 2010. He is competent to report on the nature and perceived impact of his symptoms to the extent that they are capable of lay observation. Layno v. Brown, 6 Vet. App. 465 (1994). However, he has limited competence to opine on the occupational impact of such symptoms as this is beyond his lay competence. Accordingly, his assertions as such carry little probative weight in substantiating his claim. Id. His statements are also inconsistent and of reduced credibility to the extent he has variously attributed his marginal employment to service-connected disabilities as well as a lack of jobs in the rural area or family obligations. See Madden v. Gober, 125 F.3d 1477, 1481 (Board entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence). Further, weighing against the Veteran's assertions are the highly competent, and thus probative, findings of the VA examiners indicating that the Veteran's service connected disabilities had little occupational impact. Thus, the Board is without substantially competent evidence that, prior to October 14, 2010, his service-connected disabilities caused him to be unable to secure or follow a substantially gainful occupation, or caused him to engage in only marginal employment at his family ranch. The weight of the evidence is against a TDIU as it indicates that the Veteran's service- connected disabilities did not produce unemployability prior to October 14, 2010. The Board finds that no basis exists to warrant referral of the claim to the Director, Compensation Service, for extraschedular consideration. Bowling, 15 Vet. App. 1 (2001). The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied. MATTHEW TENNER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Smith, Counsel