Citation Nr: 18148305 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 15-05 003 DATE: November 7, 2018 ORDER A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDING OF FACT The evidence of record does not show that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.1, 4.15, 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 1977 to June 1980 and from May 1983 to April 1989. The Board previously remanded this claim in December 2017 for additional development. As the actions specified in the prior remand have been substantially completed, this matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). Duties to Notify and Assist With respect to the Veteran’s claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A; 38 C.F.R. § 3.159. Neither the Veteran nor his representative have advanced any procedural arguments in relation to VA’s duty to notify and assist; therefore, the Board will proceed with appellate review. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Entitlement to a TDIU Entitlement to a TDIU has been raised by the record pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340(a)(1), 4.15. If the total rating is based on a disability or combination of disabilities for which the Rating Schedule provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability. 38 C.F.R. § 3.341(a). If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. The existence or degree of nonservice-connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran’s service-connected disabilities render him incapable of substantial gainful employment. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran is currently service-connected for migraine headaches, rated 50 percent disabling, major depressive disorder, rated 50 percent disabling, residuals of left shoulder dislocation, rated 10 percent disabling, and a traumatic brain injury, rated 10 percent disabling. The Veteran’s service-connected disabilities combine to an 80 percent rating. See 38 C.F.R. § 4.25, Combined Ratings Table. Because the Veteran has two or more service-connected disabilities, with one disability rated at 40 percent or higher, and a combined rating of at least 70 percent, the Board finds that the Veteran meets the percentage requirements under 38 C.F.R. § 4.16(a) for consideration of a schedular TDIU. Hence, the question remaining before the Board is whether the Veteran’s service-connected disabilities preclude him from engaging in substantially gainful employment. At a January 2013 VA mental disorders examination, the Veteran reported that he was currently employed as a production supervisor for a heavy equipment manufacturing company. He had been employed there for two years. Prior to that job, he was a supervisor for a different company in Mississippi, however, he was terminated after one year for poor job performance, including lack of motivation and forgetfulness. The Veteran reported to the VA examiner that he was not performing well at his current job because of his headaches, depression, and forgetfulness, and he was worried about being let go. At a January 2013 VA individual psychotherapy session, the Veteran reported to his clinician that he is struggling at work and his supervisor is unhappy with his performance. His biggest concern was his memory; he reported that he often forgets work-related requirements, meetings, and deadlines. The clinician attributed the Veteran’s forgetfulness to his depression, which can affect concentration, energy, and motivation, and discussed with the Veteran ways to aid his ability to remember work tasks and responsibilities. At a March 2013 VA examination for migraines, the Veteran reported that he was employed as a supervisor, but that he was concerned he would be terminated soon due to his poor memory and depression. The examiner opined that the Veteran’s headache condition impacts his ability to work, and that severe episodes would more than likely cause loss of work time and loss of work efficiency. At a March 2016 VA examination for migraines, the Veteran reported that his headaches have interfered with his work productivity; when he gets a headache at work he retreats to his office and turns off the lights for an hour while he waits for his medication to work. The Veteran blames his headaches for his inability to maintain employment for more than a few years at a time, beginning with being terminated from a job in 2000. The examiner opined that the Veteran’s headache condition would adversely affect his ability to perform in an occupational environmental during periods of symptomatic headache pain. His headaches would interfere with job attendance, concentration, and productivity, as well as require workplace accommodation during headache episodes. Abortive medication for the Veteran’s headache condition is generally not compatible with most occupational environments, particularly in settings requiring the operation of motor vehicles or machinery. In a July 2016 letter, the Veteran’s VA psychiatrist stated that the Veteran had recently been let go from his job due to poor performance, which the doctor attributed to the Veteran’s depression, headaches, and traumatic brain injury. In an October 2016 disability benefits questionnaire, a private doctor opined that the Veteran’s headaches would interfere with his ability to maintain gainful employment. The Veteran reported missing work several times a month due to his headaches. In total, he missed two months out of one year. The Veteran reported that he had been let go from many jobs due to his inability to work. According to a November 2016 VA outpatient note, the Veteran was no longer employed, but he was looking for another job. According to a March 2017 VA mental health note, the Veteran reported that he has resumed working as a supervisor at an automobile manufacturer. The Veteran reported that the job is going “pretty good.” He stated that getting a job and transitioning into it is not a problem. He thinks that his biggest problem when it comes to employment is his “people skills,” that is, dealing with bosses, peers, and supervisees. According to an October 2017 VA mental health note, the Veteran was still employed as a supervisor. He reported that he is doing “okay” at work and was not worried about his upcoming performance review. According to a January 2018 VA mental health note, the Veteran was still employed at the automobile manufacturer and he reported that work continued to go “fairly well.” He reported that he was given new assignments and a more challenging position recently. In March 2018, the Veteran reported to his VA mental health provider that things were continuing to go well at work and that he was looking forward to retirement. A June 2018 VA mental health note indicates that the Veteran is still employed at his job as a supervisor; he reported that he is gaining confidence and is doing well at work. Pursuant to the December 2017 Board remand, in July 2018, the Regional Office (RO) requested the Veteran to complete and return VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability). This form would have provided the Board with additional information regarding the Veteran’s employment history and claimed unemployability. However, to date, the Veteran has not returned the form. Based on the foregoing evidence of record, the Board finds that the preponderance of the evidence does not show that the Veteran’s service-connected disabilities, to include migraine headaches, major depressive disorder, traumatic brain injury, and residuals of left shoulder dislocation, render him unable to secure and follow a substantially gainful occupation consistent with his educational and occupational background. In this regard, although the Veteran clearly experiences some functional impact due to his service-connected disabilities, and, in fact, has been awarded a combined 80 percent disability rating in light of such impairment, these impacts do not result in total occupational impairment. This is evidenced by the fact that the Veteran is currently employed full-time, having last reported in June 2018 to his VA clinician that his job was going well. The Board acknowledges that the evidence of record shows that, for a time, the Veteran struggled with job performance due to depression, headaches, and cognitive impairment caused by his traumatic brain injury. In fact, the Veteran lost his job in July 2016 due to poor job performance. However, he was able to find another, comparable full-time position as a supervisor in manufacturing, and, by his own account, has excelled in his new position. In January 2018 he reported to his VA clinician that he was doing so well at work that he was being given more challenging assignments. Although it is clear that his service-connected disabilities undoubtedly cause him some degree of impairment at work, including missing days due to illness and decreased productivity, the evidence of record does not support a finding that the Veteran is prevented from securing or maintaining substantially gainful employment due to these disabilities. Because the Veteran is currently employed full-time in a position commensurate with his educational and occupational background, the Board can find no basis to grant a TDIU. In making this finding, the Board emphasizes that the rating schedule is intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. To the extent that service-connected disabilities affect the Veteran’s employment, the assigned schedular ratings for his disabilities compensate the Veteran for such impairment. Accordingly, the Board finds that the preponderance of the evidence is against finding that the Veteran’s service-connected disabilities, either individually or cumulatively, prevent him from securing or following a substantially gainful occupation. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable, and the claim for entitlement to a TDIU must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Melissa Barbee, Associate Counsel