Citation Nr: 18149950 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 12-08 219A DATE: November 14, 2018 ORDER Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The Veteran meets the schedular criteria for TDIU. 2. The Veteran’s service-connected disabilities do not render him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from December 1967 to December 1970. This case comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions. In a February 2012 statement of the case, the Agency of Original Jurisdiction (AOJ) addressed claims for increased ratings for service-connected disabilities, and pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), found that the issue of entitlement to TDIU had been raised by the record and was on appeal. In July 2015, the Veteran testified at a hearing before the undersigned Veterans Law Judge at the AOJ. A transcript of that hearing has been associated with the record. In November 2015 and October 2017, the Board remanded the issue of entitlement to TDIU for further development. That development has been completed, and the case has since been returned for appellate review. Law and Analysis All veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. For VA purposes, total disability exists 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, 4.16(b). A total disability rating for compensation may be assigned, where the schedular rating is less than total, when a veteran is, in the judgment of the rating agency, 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. 38 C.F.R. § 4.16(a). Nevertheless, even when the percentage requirements are not met, entitlement to TDIU on an extraschedular basis may be granted in exceptional cases when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. 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). For VA purposes, the term “unemployability” is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91, 57 Fed. Reg. 2317 (Jan. 21, 1992). Consideration may be given to the veteran’s education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). 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. See Van Hoose, 4 Vet. App. at 363. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to TDIU. In this case, the Veteran is service-connected for posttraumatic stress disorder (PTSD), rated as 50 percent disabling; ischemic heart disease, rated as 30 percent disabling; and type II diabetes mellitus, rated as 20 percent disabling. His combined evaluation is 70 percent. As such, the Veteran meets the schedular requirements for TDIU. Nevertheless, upon review of the claims file, the Board finds that the evidence does not show that the Veteran is unable to secure or follow a substantially gainful occupation The record shows that the Veteran was employed as a merchant marine from 1986 to 2010. See, e.g., January 2011 VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. He indicated that he completed two years of college and that he had taken merchant marine classes for his third, second, and first mate’s license and a master’s class. The Veteran indicated that he worked his way up from a deckhand to an engineer, boatswain, chief mate, and captain. See, e.g., December 2017 VA examination report. In 2010, the Veteran was the captain of the ship, and he worked three to four months at a time with three to four months off. See, e.g., January 2010 private treatment note, October 2011 VA treatment note. Historically, the evidence of record indicates that the Veteran had experienced chest discomfort while working in the South China Sea and that he was initially treated for gastroesophageal reflux (GERD) in April 2010. He had an abnormal EKG at Subic Bay Medical Center and was sent home. A private cardiologist noted that the Veteran continued to have chest discomfort, and an EKG showed an inferior lateral myocardial infarction. See April 2010 private hospital cardiac consultation. He had a cardiac catheterization and stenting of his coronary artery. The Veteran indicated that his cardiologist reported that his prognosis was good, and his treating primary care physician noted that it would be at least one year, if at all, before the Veteran could captain a ship again. See June 2010 private treatment note. Throughout the appeal, the Veteran claimed that he was unable to work because he was unable to pass the required physical examinations to sail. In a September 2013 statement, the Veteran reported that he was confined to land while he recuperated following his stent. He indicated that he received disability from the Social Security Administration (SSA) during that year. The record includes a November 2010 SSA disability determination that indicated that the Veteran was disabled due to hypertensive cardiovascular disease and an affective or mood disorder from April 2010. Nevertheless, the record also shows that the Veteran returned to work during the appeal period. In fact, in information submitted by his employer in May 2011, the company reported that the Veteran returned to work in March 2011. In a September 2013 statement, the Veteran reported that he obtained a waiver from the Navy to sail, and he sailed three more times to the South China Sea and the East China Sea from March 2011 to June 2011, from October 2011 to February 2012, and from June 2012 to September 2012. He stated that he last worked in September 2012. He related that he failed his physical examination due to high blood pressure, diabetes, high cholesterol, and the stent in his heart and that a waiver was denied. However, during the July 2015 hearing, the Veteran reported that he last worked in May 2015. He stated that he was fired at that time because he had gotten into arguments with his new bosses at his new company. He related that he was able to work for the company for 29 years until the latest contractor took over the business. During the July 2015 hearing, the Veteran reported that he felt that his service-connected disabilities prevented him from performing full-time, competitive work. Specifically, he related that he found it difficult to take direction and work for someone else; he was argumentative; he had problems with concentration and tension; and he was sometimes unable to pass a physical due to elevated blood sugar readings. He also indicated that he tired easily because of his heart disability. In a January 2011 VA diabetes examination report, the VA examiner noted that the Veteran had no limitations from his type II diabetes mellitus. In a May 2012 private psychological evaluation report, the psychologist opined that the Veteran’s mental health issues led to a deficit in his functional capacities and his inability to work. However, she also noted that the Veteran was currently working as a merchant marine captain, although he had ended his last job a few weeks early due to anxiety and depression symptoms. He reported that it was getting difficult to manage his symptoms at work. The psychologist indicated that the Veteran exhibited extreme symptoms of PTSD, depressive disorder, and anxiety. She opined that his psychological and medical issues were currently preventing him from performing daily work activities and preventing him from carrying out activities of daily living. She noted that the Veteran was unable to concentrate, exhibited poor memory and attention, had daily mobility issues, and suffered from deficits that impaired his daily functioning. She also opined that the Veteran was unable to complete his occupational responsibilities. She determined that the Veteran was unable to perform work duties on a sustained, regular basis due to his current psychological and medical impairments and he was therefore considered disabled. During a September 2016 VA examination, the VA examiner noted that the Veteran had been retired since 2015. He noted that the Veteran’s coronary artery disease resulted in no functional limitation and that the Veteran’s ejection fraction was 55 to 60 percent. He also noted that the Veteran’s diabetes was uncomplicated and caused no functional limitation. During a September 2016 VA PTSD examination, the Veteran related that he last worked in March 2015. He stated that he was working as a seaman or deckhand, but he was no longer able to pass the physical examination. The VA examiner opined that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. She also noted that the Veteran endorsed severe symptoms of depression and moderate PTSD. She related that his depression appeared to be an adjustment reaction to his current psychosocial stressors and not directly related to his PTSD. It was her opinion that the Veteran’s PTSD symptoms would result in reduced productivity and reliability in a stressful work setting where high productivity is required. She noted that he had problems with irritability, anxiety, and fatigue associated with poor sleep; however, he was alert and oriented with intact judgment. She also indicated that there was no evidence of psychosis or a thought disorder and that the Veteran was able to communicate effectively and follow, at least, simple instructions and complete routine tasks. In a November 2017 VA examination report, the VA examiner noted that the Veteran worked as a merchant marine until he was no longer able to pass the physical examination two years earlier and was unable to continue working as a merchant marine. The VA examiner noted that the Veteran had no functional limitations due to his coronary artery disease or his diabetes mellitus. He opined that there was no objective evidence that sustains a diagnosis of any impairment of the Veteran’s body sufficient to render it impossible for the average person to follow a substantially gainful occupation. He also opined that the Veteran was capable physical activity up to a moderate level based on his service-connected disabilities alone or in combination. During a December 2017 VA PTSD examination, the Veteran stated that he found a job that he could do in the merchant marines, but he was no longer able to do that work. The examiner opined that the Veteran’s PTSD manifested in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. The examiner noted that the Veteran had intrusive thoughts which interfered with his ability to stay focused on the task at hand; he had significant difficulty accepting supervision or receiving instructions without becoming angry; and he had significant difficulty functioning around other people, had difficulty functioning as a team member, and felt uncomfortable around others. The examiner also opined that, despite the Veteran’s psychological problems, he was able to function adequately or better, occupationally and socially. The examiner stated that any recent decrements in those areas were due to increased medical or physical concerns and limitations. The Board does acknowledge that the Veteran is limited due to the physical requirements of his previous employment as a merchant marine. However, these limitations do not appear to prevent other forms of employment. The Board notes that a May 2012 private psychologist opined that the Veteran’s mental health issues led to a deficit in his functional capacities and his inability to work. However, the Board also notes that the Veteran subsequently returned to work as a ship captain. In fact, he worked until he retired in May 2015. See July 2015 hearing transcript. The September 2016 and November 2017 VA examiner also determined that the Veteran’s coronary artery disease and diabetes caused no functional limitations. In fact, in his November 2017 opinion, the VA examiner opined that there was no objective evidence that sustains a diagnosis of any impairment of the Veteran’s body sufficient to render it impossible for the average person to follow a substantially gainful occupation. He also opined that the Veteran was capable of physical activity up to a moderate level based on his service-connected disabilities alone or in combination. In addition, the September 2016 and December 2017 VA examiners opined that the Veteran’s PTSD did not cause total occupational impairment. Rather, the September 2016 VA examiner indicated that the Veteran’s PTSD manifested in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The September 2016 VA examiner also indicated that the Veteran’s PTSD symptoms would result in reduced productivity and reliability in a stressful work setting where high productivity is required. The December 2017 VA examiner stated that the Veteran’s PTSD manifested in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. The December 2017 VA examiner further opined that, despite the Veteran’s psychological problems, he was able to function adequately or better, occupationally and socially. Furthermore, the Veteran’s employment history and educational history do not suggest that he is incapable of engaging in a form of employment other than going to sea as a merchant marine. In fact, he has completed two years of college. The ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment and not whether he or she can find employment. See Van Hoose, 4 Vet. App. at 363. In summary, the Veteran undoubtedly has industrial impairment as a result of his service-connected disabilities, as evidenced by his combined total rating of 70 percent. However, the evidence does not establish that his service-connected disabilities preclude gainful employment. The Board notes that “[t]he percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations.” 38 C.F.R. § 4.1; see also Van Hoose, 4 Vet. App. at 363 (noting that the disability rating itself is recognition that industrial capabilities are impaired; the record must reflect some factor which takes the case outside the norm) and 38 C.F.R. § 4.15. Thus, after reviewing the record, the Board finds that the disability evaluations assigned under the VA Schedule for Rating Disabilities accurately reflect the Veteran’s overall impairment to his earning capacity due to his service-connected disabilities. Thus, entitlement to TDIU is not warranted. Based on the foregoing, the Board finds that the requirements for TDIU have not been met. Thus, the Board finds that the weight of the evidence is against the Veteran’s claim. As such, the benefit-of-the-doubt rule does not apply, and the claim is denied. Gilbert, 1 Vet. App. 49, 53. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Osegueda, Counsel