Citation Nr: 18152027 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 16-53 309 DATE: November 20, 2018 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran’s service-connected disabilities preclude him from obtaining and retaining substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to TDIU have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1967 to December 1968. This appeal comes to the Board of Veterans’ Appeals (Board) from an October 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). On appeal, the Veteran and his representative have not raised any issues with the duty to notify or duty to assist in regard to the Veteran’s claim. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Total disability will be considered to exist where there is present any impairment of mind and 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 for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16(a). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but it may not be given to her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Veteran is service connected for posttraumatic stress disorder (PTSD)(rated at 50 percent), diabetes mellitus type II (20 percent), bilateral hearing loss (10 percent), tinnitus (10 percent), peripheral neuropathy in the right lower extremity (10 percent), and peripheral neuropathy in the left lower extremity (10 percent). The Board finds the Veteran meets the schedular criteria for TDIU because his PTSD is rated at 50 percent and his combined disability rating is 80 percent. However, the Board ultimately finds the preponderance of the evidence is against a finding that the Veteran’s service-connected disabilities preclude him from obtaining and retaining substantially gainful employment. The Veteran’s hearing loss and tinnitus were assessed by a VA examiner during the period at issue in January 2016. While the hearing loss was confirmed by testing based on puretone thresholds, the Veteran’s speech discrimination scores were 94 percent bilaterally. The Board notes the testing indicates the Veteran has substantial hearing loss (particularly at higher frequencies), and the Veteran indicated that his tinnitus interfered with his concentration and caused him sleep disturbances. Prior VA examinations of the Veteran’s hearing loss and tinnitus revealed substantially similar limitations. See, e.g., March 2009 VA hearing loss and tinnitus examination (noting the Veteran would have difficulty in hearing and understanding customers in the workplace). The Veteran’s diabetes mellitus and associated bilateral peripheral neuropathy of the lower extremities were assessed by a VA examiner during the period at issue in January 2016. While the record shows the Veteran reported more substantial limitations in the past, the examiner indicated that the Veteran’s diabetes did not limit his ability to perform work during the period at issue and that his peripheral neuropathies of the lower extremities were asymptomatic. However, an examination conducted in May 2015 indicated the Veteran’s diabetes mellitus and/or diabetes-associated conditions and/or complications limit the Veteran from performing strenuous activities. The May 2015 examiner found the Veteran’s peripheral neuropathies would limit the Veteran from working at heights or climbing ladders. The Veteran’s PTSD was assessed by a VA examiner during the period at issue in January 2016. Prior VA examinations show mostly similar or less severe findings, which relate to the period before the filing of the Veteran’s claim for a TDIU in August 2015. The January 2016 PTSD examiner noted the Veteran had many symptoms including (but not limited to) anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, and difficulty establishing and maintaining effective work and social relationships. However, the examiner reported that the Veteran’s dress was appropriate and that the Veteran exhibited good personal hygiene. The examiner found the Veteran’s thought process was logical and goal directed and that his speech pattern was within normal limits. The examiner found the Veteran was able to make and maintain good eye contact. The examiner found the Veteran was able to track the conversation during the interview and provide a coherent history and that the Veteran’s judgment and insight were intact. The examiner reported the Veteran’s mood was anxious and that the Veteran’s affect was agitated. The examiner noted the Veteran became more agitated and anxious when discussing claimed stressors, but there was no evidence of suicidal ideation, homicidal ideation, or a thought disorder. The examiner opined the Veteran had occupational and social impairment with reduced reliability and productivity. The Board finds that reports in the record of the Veteran’s day-to-day functioning show variable performance socially and with concentration, persistence, or pace on tasks. The January 2016 PTSD examiner noted the Veteran reported he was working at an auto parts retailer for six to seven years until he left due in part to hearing difficulties and being offended by being asked to do things that he felt were unethical. The examiner indicated the Veteran denied problems at work due to short temper or agitation. The examiner noted the Veteran reported he misses the fulfillment of thinking about vehicles and enjoys the work he does on his Corvair. The examiner noted the Veteran also reported he has been more lacksidaisical than ever in the past and has problems feeling motivated some days to do anything. The examiner noted the Veteran reported he enjoys being online in the Corvair forum but has to limit his time online to be with his wife. The examiner noted Veteran reported his circle of friendships has diminished because he is not interested in going out of the home. The examiner noted the Veteran reported he enjoys problem solving. The January 2016 PTSD examiner and the Veteran’s wife indicated the Veteran had many social limitations including difficulty understanding and relating to others, difficulty leaving the home, difficulty being in crowds, trouble hearing high pitches, sleep interrupted by nightmares, and hypervigilance. See October 2016 statement from the Veteran’s wife. The Veteran’s wife also indicated that the Veteran has passed out at work in the past due to his diabetes and that paramedics were called. After reviewing considering the evidence above including the VA examiners’ findings and credible lay statements about the Veteran’s limitations, the Board finds that the Veteran’s physical disabilities including diabetes mellitus and peripheral neuropathy could reasonably limit the Veteran from performing physically demanding work including positions where the Veteran would have to remain on his feet or move himself or objects throughout the day. However, the Board finds no compelling evidence that the Veteran could not perform jobs that allow him (but do not require him) to work entirely from a seated position. The Board also finds the evidence supports a finding that the Veteran is precluded from reliably perform regular driving as a part of his job due to side-effects of his medications and the potential for diabetic emergencies. Additionally, the evidence shows he must avoid proximity to hazards such as heights, ladders, and scaffolds due to his potential for passing out if his diabetes is not controlled. The Board also considered that the Veteran’s bilateral hearing disability, tinnitus, and PTSD have caused the Veteran substantial limitations in communicating and relating to others. However, the Board notes that the evidence cited above shows the Veteran is still able to maintain substantial social interactions with his wife, participate on internet forums, and interact appropriately with treatment providers. The Board finds the preponderance of the evidence shows the Veteran could perform jobs that involve only occasional social interaction or interaction through writing via a computer or print. In determining whether the Veteran could reasonable adapt to jobs that can be performed primarily from a seated position without frequent social interaction or exposure to falling hazards, the Board review the Veteran’s work history and considered his mental limitations to concentration, persistence or pace. The Veteran reported that prior to the military, he achieved a high school education and worked for a grocery store for four years See, e.g. June 2015 VA mental health examination. The June 2015 VA mental health examiner noted the Veteran reported that he was a good student. See id. The examiner noted the Veteran reported he did pursue college and did achieve an advanced degree (A.S. Automotive Technology). See id. The examiner noted the Veteran reported working for a financing company for four to five years and a bank for fix to six years. See id. The examiner noted the Veteran reported he opened a repair shop for fifteen years until the business failed and he began to work in auto sales for twelve to thirteen years. See id. The examiner noted the Veteran reported he worked for an auto parts retailer until retirement. See id. The examiner noted the Veteran indicated he retired and that he usually got along with his supervisors and coworkers. See id. The Board finds the Veteran’s substantial work history and education shows he has been capable of adapting to a wide range of work over many years including physical work and mental work in repairs, sales, and maintaining a business. While the VA examiners, the Veteran, and his wife have indicated the Veteran’s disabilities may affect his concentration, persistence, or pace on tasks, the Board finds no compelling evidence that the Veteran is incapable of performing substantial gainful employment. Accordingly, the Board finds that the Veteran’s claim for TDIU must be denied as the preponderance of the evidence shows the Veteran retains the ability to perform substantially gainful employment. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael Duffy, Associate Counsel