Citation Nr: 18146355 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 16-24 375 DATE: October 31, 2018 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) from December 21, 2013, until April 23, 2017, is granted. FINDING OF FACT The Veteran’s service-connected disabilities have precluded him from obtaining or retaining substantially gainful employment from December 21, 2013. CONCLUSION OF LAW The criteria for an award of a TDIU from December 21, 2013, until April 23, 2017, have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from January 1967 to January 1970. This case is on appeal before the Board of Veterans’ Appeals (Board) from a September 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Philippines. Neither the Veteran nor his representative has raised any specific issues with the duty to notify or the duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (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 veteran fails to raise them before the Board.”); see also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Veteran seeks a TDIU, claiming that he is unable to obtain or retain gainful employment due to his service-connected conditions. Total disability is considered to exist when there is any impairment that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the VA’s Schedule for Rating Disabilities, 38 C.F.R. Part 4, prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). The law also provides that a total disability rating based on individual unemployability due to service-connected disability may be assigned where the veteran is rated at 60 percent or more for a single service-connected disability, or rated at 70 percent for two or more service-connected disabilities and at least one disability is rated at least at 40 percent, and when the disabled person is unable to secure or follow a substantially gainful occupation as a result of the service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Where the veteran does not meet the percentage evaluation requirements under 4.16(a), he still may be deemed totally disabled on an extraschedular basis under 38 C.F.R. § 4.16(b) when the evidence nonetheless indicates that the veteran is unemployable by reason of his service-connected disabilities. Under such circumstance the matter is referred to the Director of the Compensation Service ("Director") for consideration. Extraschedular TDIU consideration requires contemplation of the following factors: severity of 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). Although the Board does not have the authority to award an extraschedular TDIU prior to referral to the Director, the Board has jurisdiction to review and award extraschedular ratings in claims that have been denied by the Director. See Kuppamala v. McDonald, 27 Vet. App. 447 (2015). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Factors to be considered are the veteran’s education and employment history and loss of work-related functions due to pain. Ferraro v. Derwinski, 1 Vet. App. 326, 330, 332 (1991). 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). 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). The fact that a veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Id. In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence of record, 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. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility 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, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board must resolve reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Board notes that from December 21, 2013, to April 24, 2017, the Veteran carried a total combined rating of at least 80 percent but less than 100 percent. This was based on the following service-connected disabilities: posttraumatic stress disorder (PTSD) at 70 percent disabling; coronary artery disease (CAD) at 30 percent disabling (from June 13, 2014); degenerative disc disease of the lumbar spine, rated at 20 percent; hearing loss, rated at 20 percent disabling; and tinnitus, rated at 10 percent disabling. Therefore, the schedular requirements for a TDIU are ment as of December 21, 2013. Prior to that date the total combined rating was 40 percent. The Veteran claims that he can no longer work due to his service-connected conditions. He reported that he completed high school, and that he was last employed by Boeing as an in-tank aircraft sealer between January 1996 and March 28, 2013. The Veteran asserted that he left this job because his service-connected conditions make him physically exhausted and unable to cope with stress. He also indicated that he has not worked since he left Boeing, and stated that does not receive workers’ compensation or disability benefits from the Social Security Administration. See January 2015 TDIU application. At an appointment in March 2015, the Veteran indicated that he owned two properties, and that he did a lot of work on them using electric saws, power tools, and other heavy equipment. In July 2017, the Veteran reported that his retirement had been “good.” He also indicated that he is always busy and has trouble not staying active. In August 2017, Dr. M.L., a private physician, submitted a disability benefits questionnaire in which she stated that the Veteran’s coronary artery disease results in aching and fatigue in both lower extremities after prolonged periods of sitting or standing. However, she indicated that these symptoms were relieved by compression hosiery or elevation of the extremity. Dr. M.L. also opined that the Veteran’s condition does not affect his ability to work. Nonetheless, she qualified that conclusion, stating that she did not know the proper standard under which to evaluate that question. After careful consideration of the claims file, upon reasonable doubt the Board concludes that the Veteran has been unable to obtain or retain gainful employment since December 21, 2013, the date he satisfied the schedular requirements for a TDIU under 38 C.F.R. § 4.16(a). Although there is evidence in the claims file suggesting that the Veteran continues to be relatively active despite the limitations imposed by his service-connected conditions, the Board acknowledges that the ability to engage in various hobbies does not necessarily correspond to the mental and physical demands of substantially gainful employment. Though the Veteran reports doing a great deal of work by himself on his two properties, the Board notes that these activities are not subject to any type of supervision or scheduling demands. As such, the Veteran’s performance of these tasks provides limited insight into his ability to interact with others and maintain productivity during an entire shift of work. The Board recognizes that the assigned a 70 percent disability rating for PTSD, effective from December 13, 2013, includes significant deficiency in performing work. This, in conjunction with the physical limitations commensurate with his other service-connected disabilities, indicate that the Veteran would have significant difficulty in obtaining and maintaining gainful employment. Therefore, the Board finds that the preponderance of the evidence supports the Veteran’s contention that he is unemployable due the combined effects of his service-connected disabilities. Accordingly, entitlement to a TDIU is granted from December 21, 2013, the date the Veteran satisfied the schedular requirements, until April 24, 2017. Prior to December 21, 2013, as the Veteran’s combined rating is only 40 percent but he had retired from work earlier that year, the Board has considered whether the evidence warrants referral for extraschedular consideration of TDIU under 38 C.F.R. § 4.16(b). However, the Board finds that the evidence is insufficient to warrant such referral. While the Board acknowledges that his service-connected disabilities at the time may have created some difficulties for him in the work-place, he continued to engage in leisure activities, and it is otherwise not shown that he was unemployable based on those service-connected disabilities at that time. In this regard, the evidence does not show that his vocational and educational experience was such that the severity of his disabilities prior to December 21, 2013, precluded the Veteran from obtaining substantially gainful employment, between March 2013 and December 2013. Indeed, as explained above for the period of which he met the schedular criteria under 38 C.F.R. § 4.16(a), there was significant evidence suggesting he was not unemployable, but TDIU was awarded only after affording the Veteran all reasonable doubt in his favor in view of the total combined rating being between 80 and 90 percent. As of April 24, 2017, the Veteran’s CAD is rated at 100 percent disabling. From this date, he is also in receipt of special monthly compensation under 38 U.S.C. 1114(s) for being assigned a 100 percent rating for CAD while simultaneously being entitled to service-connected PTSD independently rated at 60 percent or more. The United States Court of Appeals has held that the fact that a veteran has single service-connected disability evaluated as 100 percent disabling does not render the issue of entitlement to a TDIU moot. Bradley v. Peake, 22 Vet. App. 280, 294 (2008). In Bradley, the Court noted that the laws and regulations governing special monthly compensation provided that if service connected disorders other than the disorder rated as 100 percent disabling were 60 percent disabling or greater, and if those disorders precluded substantially gainful employment, then special monthly compensation was payable under 38 U.S.C. 1114(s). Thus, in Bradley, it was necessary to determine whether any of those service-connected disabilities, individually, which were not 100 percent disabling, prevented substantially gainful employment. In this case, as the Veteran is in receipt of SMC effective April 24, 2017, the question is whether the Veteran may be awarded SMC between December 21, 2013 and April 21, 2017. This is because the Veteran is rated 70 percent for PTSD as of December 21, 2013, and the other service-connected disabilities when combined amount to at least 60 percent as of November 18, 2015, as follows: CAD at 30 percent from June 13, 2014; hearing loss at 20 percent and tinnitus at 10 percent from November 18, 2015; and Lumbar spine at 20 percent from October 13, 2009). However, for the reasons set forth above, the Veteran has been awarded TDIU from December 21, 2013, on the basis of the combined effect of his service-connected disabilities rather than PTSD alone. As the Veteran is deemed not to meet the criteria for TDIU based on PTSD alone, the assignment of SMC prior to April 21, 2017, is not warranted under Bradley. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD MJS, Associate Counsel