Citation Nr: 18151470 Decision Date: 11/20/18 Archive Date: 11/19/18 DOCKET NO. 15-05 252 DATE: November 20, 2018 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability is denied. FINDINGS OF FACT 1. From September 25, 2008 to March 2, 2018, the Veteran was rated 90 percent disabled due to multiple service-connected disabilities. 2. From March 2, 2018, the Veteran has been rated as 100 percent disabled due to multiple service-connected disabilities. 3. The preponderance of the evidence indicates that the Veteran was not unemployable due to service-connected disability prior to March 2, 2018. CONCLUSION OF LAW The criteria for entitlement to a TDIU have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.15, 4.16 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1973 to June 1982, and from October 2004 to September 2008. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). On a January 2015 VA Form 9, the Veteran requested a Board hearing at the RO. In a letter sent to the Veteran’s Service Organization on March 2018, however, the Veteran’s spouse indicated that the Veteran could not attend the hearing. Since then, the Veteran has not sought another hearing. Thus, the Board will consider the hearing request withdrawn and proceed with consideration of the appeal, based on the evidence of record. Entitlement to a TDIU VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability, and to the effects of combinations of disability. 38 C.F.R. § 4.15. A TDIU for compensation purposes may be assigned where the schedular rating is less than total, 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 service-connected 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 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the above purpose of one 60 percent disability or one 40 percent disability, disabilities resulting from a common etiology or a single accident will be considered as one disability. 38 C.F.R. § 4.16(a)(1). For a Veteran to prevail on a claim for a TDIU, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether a Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. See 38 C.F.R. § 4.16(a); Van Hoose v. Brown, 4 Vet. App. 361 (1993). In determining whether an appellant is entitled to a TDIU, neither the appellant’s nonservice-connected disabilities nor advancing age may be considered. The Veteran contends that he is entitled to TDIU as he is unable to obtain gainful employment. He does not cite to a single service-connected disability but asserts that the combination of his service-connected disabilities renders him unable to obtain gainful employment. On June 24, 2010, he applied for increased compensation based on unemployability. From September 25, 2008, the Veteran has been service-connected for the following disabilities for a combined 90 percent disability rating: obstructive sleep apnea, rated as 50 percent disabling; allergic rhinitis, rated as 30 percent disabling; cervical spine intervertebral disc syndrome with degenerative arthritis, rated as 20 percent disabling; cognitive disorder, rated as 30 percent disabling; right medial neuropathy, rated as 20 percent disabling, diabetes mellitus, rated as 20 percent disabling; right shoulder status post surgery, rated as 10 percent disabling; degenerative joint disease of the thoracolumbar spine, rated as 10 percent disabling; GERD, rated as 10 percent disabling; tinnitus, rated as 10 percent disabling; hypertension, rated as 0 percent disabling; hemorrhoids, rated as 0 percent disabling; umbilical hernia, rated as 0 percent disabling; and tongue mass, rated as 0 percent disabling. Effective October 23, 2008, the cognitive disorder has been rated 40 percent disabling. The combined rating increased to 100 percent from March 2, 2018 after the grant of service connection for diabetic peripheral neuropathies, separately rated as 20 percent disabling in each extremity. The evidence in this matter consists of VA treatment records, VA examination reports, private medical evidence, and lay statements from the Veteran. The Veteran was afforded a VA examination in October 2010, and the examiner opined that the Veteran was “limited to very light work” due to his neck and back problems. On his general medical examination, the Veteran stated that he “has no memory for names” and that he “frequently forgets what he’s saying in the middle of a sentence.” After noting the Veteran’s cognitive disorder and history of traumatic brain damage, the general examiner stated that the Veteran was a postmaster in the Army, and “was able to arrange things in order to continue functioning at his MOS, and do the job until retirement.” The examiner then opined that “now that he is retired from active duty, however, I believe his TBI would essentially preclude substantial gainful employment of any kind.” The August 2011 VA examiner conducted an examination for mental disorders and found that the earlier diagnosis of a cognitive disorder was poorly supported by examination results and that there was no evidence of brain injury. After reviewing the Veteran’s files, the examiner tested the Veteran extensively, completing a neuropsychological test battery consisting of 13 tests. The examiner opined that the Veteran “did not exert maximum effort, and that failure to exert maximum effort carried through the other tests of cognitive functioning in the Neuropsychological Test Battery … Thus, the test results underestimate his true mental capacity.” The examiner also stated that the Veteran’s “working memory and mental processing approach the above average range and do not show any problems with mental functioning.” In all the tests, the examiner stated that the Veteran performed well within normal range, except for finger tapping, where the Veteran’s performance was barely within normal range. Assessing the test results, the examiner opined that “mental impairment due to Traumatic Brain Injury does not render [the Veteran] unable to obtain and sustain substantially gainful employment since he does not suffer from mental impairment due to Traumatic Brain Injury.” In June 2012, the Veteran was found generally capable of employment after taking an aptitude assessment for his vocational rehabilitation program. The Veteran scored above average in the Nelson Denny Reading Test, the Differential Aptitude Test, and no problems were noted in the Wide Range Achievement Test, the Career Assessment Inventory, and the Personal Career Development Profile. In September 2012, the Veteran was accepted to the College of the Siskiyous. In February 2013, during a visit to the VA medical center (VAMC) for incisional hernia, the Veteran stated that he worked as a welder and occasionally did heavy lifting. The Veteran underwent another VA examination in November 2014 where the examiner opined that it was less likely as not that the Veteran’s service-connected condition, mild TBI with no residuals, rendered him unable to secure and maintain substantially gainful employment. The Veteran was examined in-person after his files were reviewed, and his history of TBI was noted. The examiner also noted inconsistencies in the Veteran’s statements with regards to loss of consciousness and amnesia. The examiner noted that the Veteran’s judgment was normal, social interaction was routinely appropriate, orientation was normal, motor activity was normal, visual spatial orientation was normal, communication was normal, consciousness was normal, and that he did not report any subjective symptoms or show neurobehavioral effects. The Veteran also scored above normal in the Montreal Cognitive Assessment, obviating the need for further neuropsychological testing. The Veteran was diagnosed with mild TBI with no residuals, but the examiner could not find a temporal or medical link between the in-service injury and the Veteran’s subjective complaints of memory loss. Further, the examiner opined that TBI was not a progressive condition, nor that residuals associated with mild TBI increase in severity with time, after reviewing medical literature. On employability, based on a review of available records, medical literature review and clinical evaluation of the Veteran, the examiner opined that it was less likely than not that the Veteran’s service-connected condition, mild TBI with no residuals, rendered him unable to secure and maintain substantially gainful employment. In June 2018, the Veteran again scored above normal in a neurocognitive screening test, suggesting no significant objective cognitive deficits. The examiner also noted that the Veteran did not appear to pose any threat of danger or injury to self or others. The examiner for the Veteran’s neck stated that the Veteran has difficulty sitting and working at a computer for more than a few minutes at a time, and that the Veteran told him that the Veteran’s previous job involved “a lot of computer work.” Throughout the period on appeal, the Veteran was found fit for substantial, gainful employment. The only medical opinion on record to the contrary is from the October 2010 VA examiner who made a conclusory statement that “I believe his TBI would essentially preclude substantial gainful employment of any kind.” The examiner did not support his opinion with any rationale. Further, the conclusion was contradicted by an earlier statement that the Veteran “was able to arrange things in order to continue functioning at his MOS, and to do the job until retirement.” The examiner specifically noted a situation in which the Veteran could, and did, maintain substantial gainful employment. But then did not explain why, after retirement, the Veteran was not similarly able. So, the opinion is not supported by a rationale, and is therefore of limited probative value. The remaining evidence of record indicates that the effects on employability of a service-connected cognitive disorder are not significant. The Veteran consistently scored within normal range in cognitive tests. He also participated in vocational rehabilitation, where he tested well within normal range and obtained admission from the College of the Siskiyous in 2012. In 2013, the Veteran also stated that he worked as a welder, occasionally doing heavy lifting, despite his combined disability rating of 90 percent since September 2008, a rating that reflected his physical and mental disabilities. Moreover, the Board finds that the record does not reflect any factor which takes the Veteran’s case outside the norm. The Veteran’s high rating, a combined disability rating of 90 percent and then of 100 percent from March 2018, is in itself a recognition that service-connected impairments adversely affect employability. Even the October 2010 VA examiner, the sole examiner who opined that the Veteran would be “essentially preclude[d]” from gainful employment, acknowledged that the Veteran could work if appropriate arrangements were made. As such, the Board finds that the preponderance of the evidence demonstrates that the Veteran has been capable of performing the physical and mental acts required by employment throughout the appeal period. Therefore, entitlement to TDIU is denied. CHRISTOPHER MCENTEE Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Yun, Associate Counsel