Citation Nr: 18149204 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 12-30 749 DATE: November 8, 2018 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran is unable to obtain and maintain substantially gainful employment due solely to his service-connected disabilities. He has apparently maintained employment with the VA Compensated Work Therapy program through at least 2017. CONCLUSION OF LAW The criteria for a TDIU due to service-connected disabilities have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 4.1, 4.3, 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from March 2005 to July 2005 and from November 2005 to March 2010 with service in a designated imminent danger pay area in Iraq from September 2006 to November 2007. In September 2013, the Veteran appeared at a hearing held at the Regional Office (RO) before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In November 2014, the Board decided the claim for a higher initial rating for service-connected psychiatric disorders on the merits. The Board also determined that the issue of entitlement to a TDIU had been raised by the record and remanded the TDIU issue for evidentiary development. In October 2016, the Board again remanded the issue of entitlement to a TDIU for additional evidentiary development. It has since been returned to the Board for further consideration. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. The Veteran contends that his service-connected disabilities render him unemployable and that he is therefore entitled to a TDIU. The Board notes that, generally, total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings are authorized for any disability or combination of disabilities for which the Schedule for Rating Disabilities prescribes a 100 percent disability evaluation, or, with less disability, if certain criteria are met. Id. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. Disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor, and disabilities resulting from a common etiology or a single accident or disabilities affecting a single body system will be considered as one disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In exceptional circumstances, where a Veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b). In reaching such a determination, 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). Consideration may not be given to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. For the Veteran to prevail in a claim for TDIU, the evidence must show that he or she is unable to pursue a substantially gainful occupation due to service-connected disabilities. The sole fact that a Veteran 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, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Service connection has been in effect for the following disabilities: variously diagnosed psychiatric disorders, to include adjustment disorder with anxiety and depressed mood (also claimed as sleep disturbances) (previously rated as adjustment disorder with mixed anxiety and depressed mood, mild) (70 percent disabling); left bunionectomy (10 percent disabling); and scar, left bunionectomy (noncompensable). A combined 70 percent rating is currently in effect. Therefore, the Veteran meets the schedular requirements. What remains to be determined is whether the Veteran’s service-connected disabilities rendered him unemployable during the applicable period. To begin, the Board observes that the Veteran has never filed a VA 21-8940, Application for Increased Compensation Based on Unemployability to support his TDIU claim. Nevertheless, the Board notes that a significant amount of VA Vocational Rehabilitation Services records are included in his electronic claims file. The Board notes that previous attempts to obtain an opinion as to the issue of entitlement to a TDIU from a vocational rehabilitation specialist have proven unsuccessful because said opinion was determined to be beyond the scope of their expertise. The Board is left to consider the available evidence of record. Notably, in August 2017, the Veteran underwent VA psychiatric and foot examinations in an attempt to shed additional light on the claim. The VA foot examiner provided the following remarks: Referring to the foot DBQ 8/22/2017 ([service-connected] left foot bunionectomy with associated scar) the following shows pain, limitation of function and symptoms and clinical findings like swelling, disturbance in locomotion - see below: The veteran is in domiciliary - working COBT fulltime. His employment history was identified per vocational assessment - and in regards to his work history he worked with H&R block seasonal work, and at Walmart store as laborer stocker. These jobs did require physical abilities like walking, standing and lifting. This was in the past, the veteran is able to work in CBOT at VAMC and perform his duties related to the feet, pushing wheel chair veterans to [appointments], it was not needed to have reasonable accommodations required for participation in this program. In the past, the veteran’s work history varied from office work to manual labor. But, given the extent of the foot issue and pain, limitations and function - it would be expected the veteran would be able to obtain and maintain gainful employment in a sedentary position, and currently not a physical job, especially longterm. The veteran age is young at 37 years old and would not [affect] the ability to work at all. The veteran non-service connected physical condition listed in problem list at the current VAMC medical records include dyslipidemia, and being overweight - neither of these would limit his ability to work at all - in a physical and or sedentary position. Thus, TDIU opinion - The veteran would be able to obtain and maintain gainful employment in a sedentary position, and currently not a physical job, especially longterm. The VA psychiatric examiner provided the following remarks: The veteran was evaluated by this writer on 8/22/2017. At that time the veteran was diagnosed with unspecified depressive disorder and unspecified anxiety disorder (which together were previously diagnosed as Adjustment disorder and which are service connected), as well as non-service connected Opioid use and Benzodiazepine use disorders in early remission and cannabis use disorder, moderate. At that time the veteran was newly in remission from his substance use and was working full time in the VA CWT program and functioning well. Subsequent treatment records indicate the veteran was discharged irregular from the CWT program due to testing positive for opioids, which was a violation of the program terms. The past two C&P exams indicate that the veteran’s problems in maintaining employment have been multifactorial and have been related to (per veteran’s report) physical complaints, seasonal work/lay-offs, substance use, and service-connected psychiatric conditions. The veteran has described some problems with motivation which has sometimes caused him mild impairment with work. He spoke of not returning to a job because he didn’t “feel like” showing up. The veteran did not describe any other symptoms of [service-connected] psychiatric conditions which are significantly impairing his work. The motivation problem is caused by a combination of his [service-connected] conditions and his [nonservice-connected] substance use conditions. As far as the relative contribution of [each] condition, it is notable that the record clearly shows veteran functioning well in his CWT work when he was not using substances. However, the record shows that the veteran’s relapse on opioids caused him to lose that position and be discharged from the VA Domiciliary program. Given all available information, it appears that in the absence of active substance use, the veteran’s [service-connected] psychiatric conditions cause only mild impairment. Based on all available information, the veteran’s [service-connected] depression and anxiety cause mild occupational impairment due to the fact that they partially cause motivation difficulties. The veteran’s substance use disorders further contribute to motivational difficulty. Records show that when not using substances the veteran can function well in an occupational environment. Therefore, the [service-connected] depression and anxiety would not preclude the veteran’s ability to gain or maintain employment. The above evidence reflects that the Veteran’s service-connected disabilities alone have not rendered him unable to obtain and maintain substantially gainful employment. Importantly, the Veteran has maintained employment through at least 2017 with the VA Compensated Work Therapy program. The VA examiners of record have also opined that the Veteran’s service-connected disabilities would not preclude sedentary employment and have suggested that some of his nonservice-connected conditions have played a role in his ability to maintain employment. Furthermore, the Veteran has never submitted a VA Form 21-9840 in support of his TDIU claim. While the Board has considered the Veteran’s contentions concerning his employability, more probative value is assigned to the opinions of the VA examiners because they were conducted by medical professionals after an objective examination of the Veteran and review of his medical and employment history. After considering the totality of the record, the Board finds that the preponderance of the evidence reflects that the Veteran’s service-connected disabilities alone have   not precluded him from obtaining and maintaining substantially gainful employment. The benefit of the doubt doctrine is thus not for application and the claim must therefore be denied. 38 U.S.C. § 5107(b). MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Miller, Associate Counsel