Citation Nr: 18145620 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 15-18 637 DATE: October 29, 2018 ORDER Entitlement to individual unemployability is denied. FINDINGS OF FACT The evidence of record does not persuasively show that the Veteran’s service-connected disability precludes him from following a substantially gainful occupation. CONCLUSIONS OF LAW The criteria for entitlement to TDIU have not been met. 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1965 through September 1969. This matter comes before the Board of Veterans’ Appeals (Board) from an April 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Total disability ratings for compensation purposes may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there are sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340. Individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran’s advancing age. 38 C.F.R. § 3.341(a); see 38 C.F.R. § 4.19. For a Veteran to prevail on a claim for a TDIU rating, the sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. See 38 C.F.R. 4.16(a). Van Hoose v. Brown, 4 Vet. App. 361 (1993). Here, the Veteran is service connected for an unspecified depressive disorder (previously diagnosed as mood disorder NOS with anxiety and depressive disorders) at a rating of 70 percent. The Veteran contends that his service-connected disability prevents him from obtaining and sustaining employment. In this instance, the Veteran meets the schedular rating requirements with the presence of a disability that is less than total, but is 60 percent or greater. Thus, the Board will consider whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disability. In the June 2014 VA Form 21-8940, the Veteran reported he had last worked in December 2009 and had lost twenty days of work due to his disability. He worked as a teacher from August 1987 through December 2008. He noted four years of high school and four years of college education. He did not expect to receive disability retirement benefits. Evidence of record shows that in August 2013, a VA examiner opined that the Veteran had only reduced reliability and productivity due to his depression. The Veteran had reported during a February 2009 VA examination that the pressure of working made him believe it was time to leave the classroom. In explaining these pressures, the Veteran noted that he loved teaching, but many students did not want to learn. Further, he endorsed that the administration was putting a lot of pressure on teachers about what to teach. He complained that the paperwork was a lot to do and there was not enough time to teach and complete the paperwork. Additionally, the Veteran asserted that the increasing technology exacerbated his anxiety because he was unfamiliar with computers. He would feel overwhelmed, become shaky, and have irritability and outbursts. He also offered that he would effectively use his desk calendar to jots notes to remind him what to teach. Though these issues eventually prompted the Veteran to retire, it does not appear that the Veteran’s service-connected disability was the sole factor. At a February 2015 VA examination, the Veteran denied ever having role functioning problems related to depression or other psychiatric symptoms while employed. The examiner opined that the Veteran had sufficient concentration, persistence, understanding, and memory for employment. Additionally, the examiner opined that the Veteran would have mild and episodic problems in social interaction and maintaining a routine work schedule. Furthermore, he would have episodically moderate ability to respond appropriately to work changes, but otherwise had no other barriers for employment. The Board takes note that neither VA examiner opined that the Veteran had total occupational and social impairment. The Board has considered the Veteran’s contentions that the February 2015 did not let him express any of his problems regarding obtaining and sustaining work and that the examination was less than thirty minutes. A review of this examination shows that the Veteran was able to share some details relating to his symptomology. To the extent that the Veteran believes that the exam was inadequate due to its brevity or that it did not allow for comprehensive reporting, the record contains other evidence recording the Veteran’s symptomology affecting the ability to work. Specifically, the case file contains additional VA examinations and the Veteran’s application for increased compensation based on unemployability. Because these documents offer additional insight into the Veteran’s claim for TDIU, the record is sufficient to make a determination; as the determination of whether a veteran is employable is a legal determination, rather than a medical determination. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Additionally, a review of the record supports that the Veteran has maintained the ability to sustain relationships with others and is capable of appropriate interactions with the public. Treatment notes of record show intact thought processes and adequate memory to recall events of the past. Furthermore, the Veteran presented to appointments on time with adequate grooming. It is additionally notable that the Veteran has reported maintaining activities, such as yardwork, home maintenance and grocery shopping, at some point since retiring from teaching despite his service connected mood disorder. Some of these activities demand the physical and mental aptitude similar to those required for sustaining gainful work. Resultantly, there is no competent and credible evidence the Veteran is unable to secure and follow a substantially gainful occupation as a result of service-connected disability. The Veteran is not competent to determine whether his service-connected disability renders him unable to obtain and maintain substantially gainful employment. His lay testimony as to the functional impact of his service-connected disability has been considered in reaching this decision. However, the great weight of the evidence does not support that his service-connected disability renders him unemployable. In other words, the most probative evidence does not show that the Veteran is unable to secure or follow a substantially gainful occupation solely by reason of service-connected disability of an acquired psychiatric disorder. n closing, the Board does not doubt that the Veteran’s service-connected disability has some impact on his employability. The 70 percent schedular evaluation currently in effect recognizes significant industrial impairment resulting from his acquired psychiatric disorder. The preponderance of the evidence is against finding his service-connected disability is of such severity so as to preclude his participation in any form of substantially gainful employment. A TDIU is denied. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N.B. Mmeje, Associate Counsel