Citation Nr: 18148009 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 14-34 378A DATE: November 6, 2018 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT Throughout the appeal, the probative evidence of record does not demonstrate that the Veteran has been unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. CONCLUSION OF LAW The criteria for TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Air Force from April 1966 until March 1973. He is a Veteran of the Vietnam Era. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a July 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran initially requested a hearing by video conference. However, in March 2018, the Veteran indicated that he wished to withdraw his hearing request. Under 38 C.F.R. § 20.704(e), a request for hearing may be withdrawn by an appellant at any time before the hearing. Therefore, the Board finds that the hearing request has been withdrawn, and will proceed with appellate review. The Board has noted that no supplemental statement of the case was issued to the Veteran following receipt of additional evidence in January and June 2016. However, this did not result in any prejudice to the Veteran. The January 2016 evidence was considered by the RO in a January 2016 rating decision, and an increased rating for the Veteran’s service-connected post-traumatic stress disorder (PTSD) was denied. The Veteran was provided a copy of that decision in January 2016 and as a result received essentially all information that would have been provided through the issuance of a supplemental statement of the case. Similarly, the June 2016 evidence was not relevant to the determination of this matter. Therefore, a remand for the purpose of providing a supplemental statement of the case would cause a needless delay with no benefit to the Veteran. Entitlement to a TDIU is denied. A TDIU may be granted where a Veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or higher, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or higher, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or higher. In determining whether a TDIU is warranted, consideration may be given to a Veteran’s level of education, special training, and previous work experience, but not to his age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The determination of whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities is a factual determination rather than a medical question. Therefore, responsibility for the ultimate determination of whether a veteran is capable of securing or following substantially gainful employment is placed on the VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); see also 38 C.F.R. § 4.16; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). In this case, the issue of entitlement to a TDIU was raised as a part of the Veteran’s claim for entitlement to higher initial ratings for his service-connected psychiatric disability. Therefore, the applicable period for consideration is from April 23, 2012, the effective date for the award of service connection for PTSD, to the present. See 38 C.F.R. § 3.400. The Veteran meets the schedular percentage requirements for a TDIU because he has a combined service-connected disability rating of 100 percent, which is higher than 70 percent and both his PTSD and chronic kidney disease associated with diabetes are rated at higher than 40 percent (50 percent and 60 percent ratings, respectively). The Board notes that the grant of a TDIU is not the same as a schedular 100 percent disability rating, and that the award of a TDIU in addition to the award of a schedular 100 percent rating may result in the payment of additional benefits. See Buie v. Shinseki, 24 Vet. App. 242 (2011). In addition, the Board notes that the 100 percent combined schedular rating did not become effective until September 11, 2014. As a result, the award of a TDIU for the period prior to that date would result in an award of additional compensation. The Board recognizes that the Veteran is also service-connected for: right upper extremity neuropathy; diabetes mellitus, type II; left upper extremity neuropathy; left lower extremity neuropathy (sciatic nerve); right lower extremity neuropathy (sciatic nerve); tinnitus; and bilateral hearing loss. However, the Veteran asserted on his October 2013 VA Form 21-8940 that he is prevented from obtaining substantially gainful employment due only to his service-connected PTSD. Therefore, the Board has considered only whether the Veteran’s psychiatric disability prevents him from being able to obtain substantially gainful employment. The Veteran completed a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, in October 2013. On the form, he indicated that he has a high school education. He also stated that he worked in sales from 2004 until 2010, earning in his highest-earning year a salary of $105,000. The Veteran indicated on his VA Form 21-8940 that he did not leave the job because of his disability. Of the competent medical opinion evidence of record, the Board affords great evidentiary weight to the July 2014 Compensation & Pension examiner’s opinion that the Veteran’s mental state “does not preclude sedentary occupational functioning”. The Compensation & Pension examiner was fully informed of the pertinent factual premises of the case, to include the competent and credible lay statements establishing that the Veteran has symptoms including sleep disturbances, irritability, and some memory loss. In addition, the examiner provided a fully articulated opinion supported by a thorough review of the Veteran’s medical history. The examiner’s opinion is consistent with the other evidence of record and provides a well-reasoned analysis explaining the examiner’s opinion that the Veteran has only “mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress”. Therefore, the Board finds that this examiner’s opinion is due great probative value. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The Board affords relatively less probative value to Dr. B’s competent August 2014 opinion that the Veteran’s psychological condition precludes employment because he is “unable to tolerate interactions with the general public, and would be unable, on account of this, to maintain any job”. This opinion is not based on adequate rationale. Though Dr. B stated that he reviewed the medical records, he made clear that his conclusion was based “on these reports from Veteran and his wife and his documented diagnosis of service related PTSD”. For example, Dr. B notated that the Veteran reported that he “is unable to tolerate interactions with the general public”. However, he had reported to different provider the previous month that he was “talking to people in line more at the stores and feeling better about himself and others”. He has also reported on numerous occasions that he and his wife periodically go out to eat in public, meaning that he is able to interact with the public at restaurants. See July 2014 and January 2016 Compensation & Pension Examinations. Additionally, the month after speaking to Dr. B, the Veteran reported to a different provider that while he still experienced anxious in crowded areas, he was “not as easily triggered to reminders of trauma” and was “doing better”. The record shows that the Veteran has even been able to adapt to stressful circumstances in public as the record reflects that he is able to drive, go out to eat, and shop out in public. Dr. B’s opinion is refuted by the July 2014 Compensation & Pension examiner’s opinion, which is supported by a detailed rationale, as discussed above. Accordingly, the Board finds that Dr. B’s August 2014 opinion is due relatively less probative weight than the July 2014 examiner’s well-reasoned opinion. The Board agrees with the July 2014 Compensation & Pension examiner’s opinion that the Veteran’s PTSD does not preclude him from sedentary employment. The Veteran indicated on his VA Form 21-8940 that he became too disabled to work on his last date of employment, but also indicated that he did not leave the job because of his disability. Instead, per the Veteran’s wife’s October 2014 lay statement, the Veteran stopped working because he retired. There is no evidence in the record that the Veteran had to be accommodated at work, nor of an inability to interact with coworkers or the public. Instead, the record reflects that the Veteran has significant sales experience, experience using the internet on a near-daily basis, and can interact with the public. Therefore, the evidence indicates that the Veteran could transition into a sedentary position in sales, clerical work, or computer support. Even if the Board were to consider the remainder of the Veteran’s service-connected disabilities, which it is not required to do in this case because the Veteran asserted that only his PTSD precludes gainful employment, this analysis would not differ. While the Veteran’s other service-connected disabilities affect him physically, this is rectified by sedentary employment. In addition, the Board acknowledges that the Veteran’s nonservice-connected disabilities may further limit his functioning such that he is unable to secure or follow a substantially gainful occupation, but his nonservice-connected disabilities are not for consideration in determining whether he is entitled to a TDIU. See 38 C.F.R. § 4.16. When only his service-connected disabilities are considered, the evidence indicates that the Veteran’s work history and level of education would not prevent him from transitioning to an occupation that involves a basic, routine occupation of a low exertional level such as sales, clerical work or computer support. The Veteran is already in receipt of a combined 100 percent disability rating for his disabilities, which should compensate for any work time lost. Thus, entitlement to a TDIU is not appropriate in this case. The Board concludes that the probative evidence of record demonstrates that the Veteran has not been unable to secure or follow a substantially gainful occupation due solely to his service-connected disabilities. The preponderance of the evidence is against the Veteran’s appeal, the benefit-of-the-doubt rule is not for application, and the appeal must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. at 55 (1990). MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K.Smith, Law Clerk