Citation Nr: 18147064 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 11-17 734 DATE: November 2, 2018 ORDER A total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The service-connected disabilities do not render the Veteran unable to secure or follow substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 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 September 1987 to September 1991 in the United States Marine Corps. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In April 2015, the Veteran testified before the undersigned during a hearing at the RO. A transcript of the hearing is included in the electronic claims file. In September 2018, the Veteran waived his right to have evidence received after the last RO adjudication reviewed in the first instance by the RO. TDIU VA will grant disability compensation based upon individual unemployability (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). 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. The Veteran’s service-connected disabilities include posttraumatic stress disorder (PTSD) with depressive disorder and alcohol use disorder (70 percent disabling), irritable bowel syndrome (IBS) with gastroesophageal reflux disease (GERD) and a hiatal hernia (30 percent disabling), rectal polyps and anal fissures (20 percent disabling), and a residual scar from a pilonidal cyst (noncompensable). He has been in receipt of a combined disability higher than 70 percent since December 5, 2008 (throughout the entire appeal period), with at least one disability rated at 40 percent or higher. He was also awarded a temporary total rating from February 7, 2012 to May 31, 2012 for his PTSD. Thus, the combined schedular rating criteria for consideration of TDIU under 38 C.F.R. § 4.16(a) have been met for the entire appeal period. Consequently, the Board must determine whether the Veteran's service-connected disabilities preclude him from engaging in substantially gainful employment (work that is more than marginal, which permits the individual to earn a “living wage.”) Moore v. Derwinski, 1 Vet. App. 356 (1991). To briefly summarize the procedural history of the appeal, the claim for a TDIU arose from a claim for a higher rating for PTSD, and was added to the appeal pursuant to caselaw which stated that a claim for TDIU would be inferred as part and parcel of the underlying increased rating claim if certain conditions were met. Rice v. Shinseki, 22 Vet. App. 447 (2009). In June 2015, the Board granted a 50 percent rating for PTSD prior to May 6, 2014, and denied a rating higher than 50 percent for any portion of the appeal period. The Board additionally determined that a claim for a TDIU had not been raised. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In May 2016, the Court vacated the June 2015 Board decision on the matter of a higher rating for PTSD. As for a TDIU, the Court discussed the Board’s finding that the Veteran was not entitled to a TDIU because he had not contended, and the evidence did not indicate, complete unemployability. The Court determined that the Board used an incorrect standard in making this finding, as an award of TDIU does not require a showing of 100 percent unemployability. The matters were remanded the matter to the Board for development consistent with the parties' Joint Motion for Remand (Joint Motion). In July 2016, the Board granted a rating of 70 percent for PTSD, and remanded the claim for a TDIU for further development. That development has since been completed. A review of the record shows the Veteran completed high school and two years of college. In 2006 he began vocational rehabilitation through VA, but did not complete his program. He was last employed with Apple Inc., earning $38,000 annually. He reports he stopped working in December 2010 or January 2011. He has not undergone other education or training before or after becoming too disabled to work. See VA Forms 21-8940. On review of the pertinent evidence in light of the governing legal authority, the Board finds that the preponderance of the evidence is against the claim. Initially, the record indicates Veteran maintained a substantially gainful occupation for a portion of the appeal period until either December 2010 or January 2011, despite his service-connected disabilities. Further, during the course of the appeal, the Veteran underwent multiple examinations, and no examiner opined that he is unable to secure or follow substantially gainful employment due to service-connected disabilities. As for IBS/GERD and rectal polyps/fissures, on VA examination in June 2010, the examiner found no impact of GERD on the Veteran’s usual occupation. IBS impacted employment to the extent it flared and caused absences. On VA examination in July 2011, the Veteran reported being fired several times for going to the bathroom too often. He reported he was currently on short-term disability due to PTSD and his IBS/GERD symptoms. The examiner did not render findings on the impact of his disabilities on employment. On VA examination in October 2016, the examiner considered the Veteran’s IBS, GERD, and rectal polyps/fissures and opined that he could be employed in physical and sedentary work, so long as restrooms were readily available. In an eight-hour workday, he could safely lift, carry, push, pull, bend, twist, kneel, squat, stand, sit, climb, drive, walk, write, operate a keyboard, and speak on a telephone. The examiner concluded that his disabilities did not preclude either physical work or desk-work. On VA examinations in August 2017, the VA examiner found that GERD and IBS did not impact his ability to work. On VA examinations in August 2018, VA examiners again found that the IBS and GERD did not impact his ability to work. As for the residual scar from a pilonidal cyst, the October 2016 VA examiner found it caused no limitation of function. On VA examination in August 2017, the examiner found it caused no limitation of function and did not impact his ability to work. As for the PTSD, on VA examination in September 2009, the examiner found his psychiatric symptoms caused an occasional decrease in work efficiency and intermittent periods of an inability to perform occupational tasks. He was assigned a Global Assessment of Functioning (GAF) score of 55, indicating moderate psychiatric symptoms. Diagnostic and Statistical Manual of Mental Disorders (4th Ed.) The examiner opined he was employable from a psychiatric standpoint, ideally in a setting that could accommodate his IBS. On VA examination in May 2014, he reported being fired from multiple jobs due to his psychiatric symptoms. The examiner found he had occupational and social impairment with reduced reliability and productivity. On VA examination in November 2016, the examiner also found he had occupational and social impairment with reduced reliability and productivity. The examiner opined that he retained the cognitive, emotional, and behavioral capacity to engage in at least simple tasks in a loosely supervised environment. He would perform best in a position with low stress, flexibility in the ability to take breaks and leave, and an environment where he could perform tasks by himself or with very few people. On VA examination in August 2017, the examiner found he had occupational and social impairment with reduced reliability and productivity. Considering his service-connected disabilities, the above evidence indicates the Veteran is capable of physical labor, as described by the October 2016 examiner, for example, who specifically outlined his physical capabilities. The Board finds he is capable of non-physical labor as well. His level of education and vocational experience in technical support indicate that he could perform non-physical employment, as both the September 2009 and November 2016 VA examiners described. While his service-connected disabilities interfere with and impact employment, the record does not indicate that they have caused an inability to secure or follow substantially gainful employment at any point in the appeal period. The only evidence to the contrary is the lay evidence. He does not, however, have the technical expertise to discuss how each of his service-connected disabilities result in occupational impairment. While he is certainly free to discuss his personal experience, the competent medical evidence above is persuasive. weighing against the Veteran's assertions are the highly competent, and thus probative, findings of the medical providers described above. The above evidence reflects that the weight of the evidence is against a TDIU as it indicates that the Veteran's service- connected disabilities do not produce unemployability. Rather, the disability ratings assigned for his service-connected disabilities is recognition of the occupational impairment they cause. On this record, the Board finds that no basis exists to award a TDIU. In reaching this decision the Board considered the doctrine of reasonable doubt, however, the doctrine is not for application. M. TENNER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Smith, Counsel