Citation Nr: 18147918 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 10-38 250 DATE: November 6, 2018 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The preponderance of the evidence reflects that the Veteran’s service-connected disabilities did not preclude him from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION This case was remanded to the Agency of Original Jurisdiction (AOJ) in January 2013 for the AOJ to adjudicate the Veteran’s pending service connection claims for hypertension, ischemic heart disease, respiratory disorder, and Veteran’s claim to reopen a service connection claim for a skin disability. Additionally, the case was remanded for the Veteran to receive a new VA examination for his post-traumatic stress disorder (PTSD). The Veteran received a new VA examination in February 2013, and the RO denied the Veteran’s claim to reopen his skin disability claim in an August 2013 decision. However, the AOJ failed to address the Veteran’s service connection claims for hypertension, ischemic heart disease, and a respiratory disability. Accordingly, the Veteran’s case was remanded again in February 2015 for the AOJ to decide the aforementioned claims. These claims were denied in a May 2018 rating decision. Thus, the Board finds there was substantial compliance with the Board’s remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran selected his daughter B. M. as his representative. She is not an accredited attorney or representative per VA regulations. In March 2018, the Veteran was informed of this and provided 30 days to elect another representative. He did not elect another representative. In May 2018, the Board denied the Veteran’s TDIU claim. In May 2018, the Veteran filed a motion for reconsideration. In August 2018, the Board vacated the previous denial because the Veteran was not properly advised on how to appoint a one-time representative under 38 C.F.R. § 14.630. The information was provided in August 2018. B. M. returned a VA Form 21-22 indicating that she was representing under 38 C.F.R. § 14.630, meaning that she is representing him for the TDIU claim only. Entitlement to a total disability rating based on individual unemployability (TDIU). Under the applicable criteria, a TDIU rating may be assigned, 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 is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reasons of service-connected disabilities shall be rated totally disabled. Therefore, in the case of veterans who are unemployable by reason of service-connected disabilities, but who do not meet these schedular percentage standards set forth in 38 C.F.R. § 4.16(a), the case should be submitted to the Director of the Compensation Service for extraschedular consideration. The Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors must be considered. See 38 C.F.R. § 4.16(b). The central inquiry is “whether a veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Board will not consider his or her age or impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. The Veteran’s combined disability rating is 60 percent, with his PTSD is rated at 50 percent and his diabetes mellitus is rated at 20 percent. Accordingly, the schedular requirements for TDIU were not met as his combined rating was less than 70 percent and he did not have a single-disability rated at 60 percent. When a Veteran’s disability ratings did not meet the minimum schedular criteria for a TDIU, the Board must still consider whether he is unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities. 38 C.F.R. § 4.16(b). In these situations, the claim must be submitted to the Director of the Compensation Service for extraschedular consideration. The Veteran’s medical treatment records noted that the Veteran had nightmares due to his PTSD. At an April 2009 VA examination, the VA examiner noted the Veteran functioned well with his family, but he did not like to socialize or be in public places. The VA examiner opined the Veteran’s PTSD had a mild to moderate impact on his functioning. The Veteran’s PTSD did not affect his judgment, thinking, family relations, work, or mood. The VA examiner stated the Veteran did not have total occupational impairment due to his PTSD but did have occasional decreases in work efficiency due to anxiety or irritability. A private opinion in June 2009 noted the Veteran had impulse control and anger management issues. Nevertheless, the examiner found that the Veteran’s job as a crane operator allowed him to work in job where he avoided contact with others. The Veteran received another VA examination in February 2013. The examiner noted the Veteran previously worked as a crane operator but had problems with shortness of breath, became lightheaded, suffered from swollen feet, and did not like working with others. The VA examiner opined the Veteran’s PTSD caused occupational and social impairment with reduced reliability. Nevertheless, the examiner concluded the Veteran was not totally disabled due to his PTSD and diabetes. The examiner acknowledged his difficulty interacting with others was due to his PTSD. The examiner also acknowledged the Veteran’s feet swelling was due to his diabetes which would affect his job. However, the VA examiner stated the Veteran was only totally disabled when considering his shortness of breath and dizziness, which are due to his non-service-connected COPD. In the May 2018 motion for reconsideration, the Veteran’s representative provided more information about the Veteran’s condition. She stated the Veteran suffers from memory loss and lack of motivation, noting the Veteran prefers to sleep all day. She also noted the Veteran’s continued wheezing, imbalance when walking, and chest palpitations; however, as noted above, these symptoms are attributed to his non-service connected COPD. In considering the combined effects of the Veteran’s service-connected disabilities the Board concludes they do not render the Veteran unemployable. As noted previously, the Veteran worked as a crane operator prior to his retirement. The Veteran’s service-connected disabilities impacted his employment. As discussed above, due to the Veteran’s disability he worked better in solitary settings, which was provided with his work as a crane operator. The Veteran’s feet swelling due to his diabetes also impacted his employment. The Board finds the February 2013 VA opinion that the Veteran’s total disability was due to his service-connected disabilities in combination with the shortness of breath and dizziness caused by his non-service-connected COPD to be highly probative. The Board also considers the symptoms described in the May 2018 statement, but notes the wheezing and chest palpitations are symptoms of the Veteran’s non-service connected disability. The Board is precluded from considering impairments caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Board acknowledges the Veteran’s representative report of the Veteran’s declining mental health, such as his memory loss and lack of motivation, but finds his unemployability is due in part to his non-service-connected COPD, and that without symptoms from COPD, the Veteran would be employable. In other words, the Veteran is not unemployable solely due to his service-connected PTSD and diabetes. Therefore, referral to the Director of the Compensation Service for extraschedular consideration for TDIU is not warranted. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Brunot, Associate Counsel