Citation Nr: 18145061 Decision Date: 10/26/18 Archive Date: 10/25/18 DOCKET NO. 16-38 706 DATE: October 26, 2018 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) on a schedular basis prior to November 1, 2017, and on an extraschedular basis since November 1, 2017, is denied. FINDINGS OF FACT 1. For the entire period on appeal, the most credible, competent, and probative evidence of record demonstrates that the Veteran’s service-connected disabilities alone are not of such nature and severity as to have prevented him from securing or following any substantially gainful employment. 2. Since November 1, 2017, the Veteran has not met the minimum percentage requirements for consideration of a TDIU rating as set forth under 38 C.F.R. § 4.16 (a). CONCLUSION OF LAW The criteria for a TDIU, to include on an extraschedular basis, are not met. 38 U.S.C. §§ 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1965 to April 1967. This matter is on appeal from a September 2014 rating decision. Entitlement to TDIU The Veteran contends his service-connected PTSD, diabetes mellitus, and bilateral arm and leg disabilities render him unable to retain or maintain gainful employment. See, April 2013 VA Form 21-8940. Total disability is considered to exist when there is any impairment 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) (2018). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability. When, there are two or more disabilities, at least one disability must be rated 40 percent or more, and any additional disabilities must result in a combined rating of 70 percent or more. 38 C.F.R. § 4.16 (a) (2018). Prior to November 1, 2017, the Veteran’s service-connected disabilities were diabetes mellitus and peripheral neuropathy of the left and right arm, each rated as 20% disabling; peripheral neuropathy of the left and right leg, each rated as 10% disabling; and PTSD rated as 50% disabling, for a combined rating of 80%. Accordingly, the Veteran met the minimum schedular requirements for TDIU. See 38 C.F.R. § 4.16 (a). In an August 2017 rating decision, the RO reduced the rating from 50% to 0% for PTSD, effective November 1, 2017, reducing the combined disability rating to 60%. Because the Veteran does not have one service-connected disability rated as at least 60 percent, or two or more disabilities with a combined rating of at least 70 percent from November 1, 2017, the initial criteria for schedular consideration for the grant of TDIU under 38 C.F.R. § 4.16 (a) are not met. Nevertheless, the Board must determine whether the Veteran’s TDIU claim should be submitted to the Director of Compensation and Pension service for consideration of TDIU on an extraschedular basis. See 38 C.F.R. § 4.16 (b). Turning to the merits of the claim, in December 2012 the Veteran underwent VA Disability Benefits Questionnaire (DBQ) examinations. On eye conditions examination, the examiner opined that the Veteran’s eye disability did not impact his ability to work. On PTSD examination, the examiner opined that the Veteran’s PTSD caused difficulty in establishing and maintaining effective work and social relationships and difficulty in adapting to stressful circumstances, including work or a worklike setting. However, it was also noted that post-service he was in the operating engineers local when he injured his back and neck and went on worker’s compensation. On diabetes mellitus examination, the examiner opined that the Veteran was unemployed and on disability due to back and neck problems. However, the examiner also opined that he would be unable to work in his previous job as a truck driver, because driving a truck and operating heavy equipment would not be allowed due to frequent hypoglycemic reactions (about once a week). On diabetic sensory-motor peripheral neuropathy examination, the examiner opined that the Veteran’s diabetic peripheral neuropathy did not impact his ability to work. On December 2013 VA PTSD DBQ examination, the Veteran’s symptoms included difficulty in establishing and maintaining effective work and social relationships and difficulty in adapting to stressful circumstances, including work or a work-like setting. In a separate December 2013 opinion the Veteran’s employability, the examiner opined that the Veteran had difficulty maintaining concentration and focus on work over a period of time, tended to skip from one task to another without completing the prior task, had intrusive thoughts which interfered with the ability to stay focused on the task at hand, had significant difficulty remembering instructions and details of work assignments, and was fatigued at work which created difficulty with concentrating and focusing on work assignments. However, the examiner concluded that the Veteran was employable and opined that it was more likely than not that he would be able to secure and maintain gainful employment (i.e., at that time he was able to work, despite any mental health service-related conditions). On December 2013 VA diabetes mellitus DBQ examination, the examiner opined that the Veteran’s diabetes mellitus did not impact his ability to work. On December 2013 VA diabetic sensory-motor peripheral neuropathy DBQ examination, the examiner opined that the Veteran’s diabetic peripheral neuropathy did not impact his ability to work and stated that he was able to perform light work. On December 2013 VA eye conditions DBQ examination, the examiner opined that the Veteran’s eye disabilities impacted his ability to work, but did not go so far as to opine that he was unemployable due to his bilateral eye disabilities. Records from the Social Security Administration (SSA) include an April 2002 private treatment record which shows that the Veteran sustained a work-related back injury that month. A May 2003 report indicates diagnoses of chronic low back pain with acute flare-up with left sided radiculopathy and type II diabetes mellitus. The physician stated that he was temporarily totally disabled for two more weeks due to the lack of light duty work. A July 2003 SSA disability determination indicates a primary diagnosis of disorders of the back and a secondary diagnosis of diabetes mellitus. On May 2014 VA PTSD examination, the examiner indicated that the PTSD was best summarized by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The examiner also indicated that the Veteran was disabled and was not able to work for the past few years. In a September 2014 notice of disagreement, the Veteran stated that it did not appear that the VA examiner considered the collective effect of his disabilities. However, a September 2014 Report of General Information shows that the Veteran called to say that he was unable to work due to a work-related injury and stated that a worker’s compensation doctor said he was unable to continue working. On June 2015 VA PTSD DBQ examination, the examiner indicated that the Veteran had no mental diagnosis. On July 2016 VA diabetic sensory-motor peripheral neuropathy DBQ examination, it was noted that many of his symptoms began after a worker’s compensation injury and that a work-related neck injury also caused some numbness and tingling. The examiner concluded that he was disabled secondary to the work-related neck and back injuries. VA treatment records include a February 2016 report which shows that the Veteran reported neck and back pain since the 2002 work-related injuries. The Board finds that the evidence of record is insufficient to show that the Veteran was unable to secure or follow a substantially gainful occupation because of his service-connected disabilities prior to or since November 1, 2017. Notably, none of the VA examiners have opined that the Veteran is unemployable due to his service-connected disabilities. Moreover, the July 2016 VA examiner, in pertinent part, found that the Veteran was disabled due to his work-related neck and back disabilities. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. In this case, the Veteran’s own statements indicate that his employability was affected, mainly, by his non-service connected back and neck disabilities related to a work-related incident for which he received worker’s compensation. While the Board does not disagree that his service-connected disabilities impacted his ability to work to some degree, the Board finds that the preponderance of the evidence is against a finding that the service-connected disabilities, in combination prevented him from securing or following a substantially gainful occupation. Therefore, the Board finds that the Veteran does not meet the requirements for TDIU. In considering whether TDIU is warranted, the Board has also considered the Veteran’s statements that his service-connected disabilities made him unemployable. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36 (1994); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465 (1994); Cartright v. Derwinski, 2 Vet. App. 24 (1991) (although interest may affect the credibility of testimony, it does not affect competency to testify). The Veteran is competent to report symptoms because that requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). However, he is not competent to identify to the extent to which service-connected disabilities make him unemployable according to the pertinent VA regulations. Those determinations require training, which the Veteran is not shown to have. Overall, the evidence does not establish that the Veteran was unemployable due to his service connected disabilities. For the period since November 1, 2017, the Board has considered whether the Veteran’s claim should be referred to the Compensation and Pension Director for consideration of entitlement to a TDIU on an extraschedular basis under 38 C.F.R. § 4.16 (b). When there is plausible evidence that a Veteran is unable to secure and follow a substantially gainful occupation, without any affirmative evidence to the contrary, a Veteran’s case is eligible for consideration under 38 C.F.R. § 4.16 (b) by referral to the Compensation and Pension Director. In this case the criteria for referral have not been met as the preponderance of the evidence is against the Veteran’s claim for a TDIU on an extraschedular basis. Finally, the Board acknowledges the Veteran’s contention that the VA examiner failed to consider the collective impact of his disabilities on his employment. Johnson v. McDonald, 762 F.3d 1362 Fed. Cir. 2014). However, as of January 8, 2018, extraschedular evaluations may no longer be based on the combined effect of more than one service-connected disability. See 82 FR 57830. The provisions of this final rule apply to all applications for benefits received by VA on or after January 8, 2018, and to claims pending before VA, the Court, or the U.S. Court of Appeals for the Federal Circuit on January 8, 2018. As such, the Board may not consider a claim for an extraschedular evaluation due to combined effects of multiple service-connected disabilities. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Adams, Counsel