Citation Nr: 18155159 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 12-30 598 DATE: December 4, 2018 ORDER Entitlement to a total disability rating for compensation based on individual unemployability due to service-connected disabilities (TDIU) prior to April 4, 2017 is denied. FINDING OF FACT The Veteran’s service-connected disabilities did not render him unable to obtain and maintain substantially gainful employment prior to April 4, 2017. CONCLUSION OF LAW The criteria for entitlement to a TDIU rating prior to April 4, 2017 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1981 to April 1983. The Board denied this appeal in a September 2017 decision. The Veteran appealed that decision to the U. S. Court of Appeals for Veterans Claims (Court). In August 2018, the Court granted a joint motion for remand (JMR), vacating the Board’s decision as it related to the issue on appeal, and remanded the matter for compliance with the instructions in the JMR. Entitlement to a TDIU rating prior to April 4, 2017 A TDIU rating may be granted upon a showing that the Veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his or her service-connected disabilities. 38 C.F.R. § 4.16(a). There are minimum disability rating percentages that must be shown for the service-connected disabilities, alone or in combination, to even qualify for consideration for a TDIU award under § 4.16(a). Indeed, if there is only one such disability, it must be rated at 60 percent or more; if instead there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. In determining whether a veteran is unemployable for VA purposes, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. A veteran need not show 100 percent unemployability in order to be entitled to a TDIU rating. The Court has held that the central inquiry in determining whether a veteran is entitled to a TDIU rating is whether service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). The test of individual unemployability is whether a veteran, as a result of his or her service-connected disabilities alone, is unable to secure or follow any form of substantially gainful occupation which is consistent with his or her educational and occupational experience. 38 C.F.R. § 3.340, 3.341, 4.16. The Board also notes that the ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; rather, that determination is for the adjudicator. 38 C.F.R. § 4.16(a). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. The Veteran is service connected for posttraumatic stress disorder (PTSD) at a 50 percent rate from January 24, 2005 to January 22, 2012 and a 70 percent rate from January 23, 2012; ischemic heart disease at a 10 percent rate from September 4, 2009 to February 25, 2010, a 30 percent rate from February 26, 2010 to August 25, 2011, and a 60 percent rate from August 26, 2011; neuropathy of the right upper extremity at a 40 percent rate from April 4, 2017; neuropathy of the left upper extremity at a 30 percent rate from April 4, 2017; diabetes mellitus at a 10 percent rate from November 29, 2010 and a 20 percent rate from July 20, 2011; tinnitus at a 10 percent rate from April 8, 2016; and neuropathy of the bilateral lower extremities in both the sciatic and femoral nerve at a 10 percent rate each from April 4, 2017. The Veteran is also service connected for a bilateral hearing loss disability and diabetic nephropathy at a noncompensable rate. The Veteran’s combined rating for compensation is 50 percent from January 25, 2006 to September 3, 2009; 60 percent from September 4, 2009 to February 25, 2010; 70 percent from February 26, 2010 to August 25, 2011; 80 percent from August 26, 2011 to January 22, 2012; 90 percent from January 23, 2012 to April 3, 2017, and 100 percent from April 4, 2017. As the Veteran has received a 100 percent rating from April 4, 2017, the Board will only consider whether or not the Veteran has met the criteria for TDIU prior to April 4, 2017. The Veteran meets the schedular requirements for a TDIU rating as far back as February 2010. Regardless, the Board is considering entitlement to a TDIU prior to April 2017 whether he meets the schedular criteria or not. As noted above, the central inquiry in determining entitlement to a TDIU rating is whether the service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). The Board finds that the Veteran was not unable to maintain substantially gainful employment based on his service-connected disabilities alone at any point during the period on appeal. The Veteran’s applications for a TDIU rating document that he completed high school but does not have any additional education. Prior to joining the military, the Veteran reports working at a meat market, in retail, and in a lab doing delivery. In the Army, the Veteran served as a truck driver, and after separation from active duty service, the Veteran worked as a printing machine operator. The Veteran also reported that he joined the National Guard for 12 years, beginning in the late-1970s. The Veteran’s longest period of full-time employment was at a paper mill, where he worked for 23 years, ultimately achieving the title of chief operator. The Veteran left work at the paper mill in 1992 after a back injury and subsequent depression. However, in a completed Request for Employment Information in Connection with Claim for Disability Benefits submitted by the Veteran’s employer in June 2012, it was noted that the Veteran remained employed on a full-time basis until June 1994. The Veteran also reported that he owned a garbage service and a club at various times during his employment at the paper mill, though it seems he had to sell both businesses. The Veteran described himself as a “workaholic” prior to his back injury in 1992. On both of the Veteran’s applications for a TDIU rating included in his claims file (submitted in January 2012 and December 2016), the Veteran documented that his last full-time employment was at the paper mill, which he reports he left in January or June 1992 due to his back disability. The Veteran, on both applications, asserted that he was unable to continue working because of his PTSD and his ischemic heart disease, and on the January 2012 application, the Veteran reported he was also unemployable due to his diabetes mellitus. The Veteran receives benefits from the Social Security Administration (SSA) for chronic, severe low back pain, but, as noted above, the Veteran’s chronic back pain is not service connected, and the Board may consider only the Veteran’s service-connected disabilities for the purposes of determining entitlement to a TDIU rating. The Veteran’s claims file includes numerous VA examinations addressing the Veteran’s service-connected disabilities. VA examinations from June 2010, May 2012, and January 2017 document that the Veteran’s ischemic heart disease would have some impact on the Veteran’s employability due to labored breathing and shortness of breath. The May 2012 VA examination suggested that the Veteran’s diabetes mellitus and ischemic heart disease would limit the Veteran’s ability to perform manual labor, but would not limit his ability to perform clerical or administrative work so long as he was able to minimize the amount of lifting or prolonged standing, reaching, or pulling. The Veteran’s VA examination from June 2016 continued to show that the Veteran’s diabetes mellitus caused weakness and fatigue, and his peripheral neuropathy of the upper and lower extremities impacted his prolonged ability to stand and walk. The Veteran underwent an initial psychiatric evaluation in October 2010. At this examination, the Veteran’ reported that he had been hospitalized for suicidal ideation in 2008 or 2009. The examiner noted that the Veteran was fully oriented with below average intelligence, moderately impaired memory and fair impulse control. A second VA psychiatric examination, conducted in August 2013, documented mild memory loss, difficulty maintaining work relationships, impaired impulse control, and unprovoked irritability. However, the Veteran was noted to be able to manage his finances, exhibited average intelligence, and the Veteran specifically reported that he did not leave his employment primarily due to his mental health symptoms. The Veteran reported that he was still independent and able to complete tasks so long as he did not have to complete heavy lifting or move around quickly. At a subsequent VA psychiatric examination, conducted in January 2017, the VA examiner noted that the Veteran still had deficiencies in most areas, and the Veteran’s symptoms continued to include irritability, difficulty establishing and maintaining relationships, mild memory loss, and angry outbursts. At this examination, the Veteran also endorsed near continuous panic and depression. However, the Veteran was still able to understand complex commands, engage in abstract thinking, and there was no objectively apparent impairment to his judgment or speech. The Veteran was able to manage his finances, and he was fully oriented with good hygiene. The Veteran’s behavior was not grossly inappropriate. In an April 2012 letter, Dr. M.Y. wrote that the Veteran met the criteria for a 70 percent rating for the service-connected psychiatric disorder. He wrote that the Veteran had most of the criteria listed under the 70 percent rating, that he was “experiencing extreme difficulty every day of his life,” and described the Veteran as “lead[ing] a life of severe isolation and alienation.” Dr. M.Y. wrote the Veteran documented symptoms including deficiencies in judgment and thinking, severe mood swings, suicidal ideation, constant depression, obsessional rituals, impaired impulse control, and an inability to tolerate stressful circumstances and establish and maintain relationships. Dr. M.Y. wrote that the Veteran did not exhibit illogical, obscure, or irrelevant speech; was not spatially disoriented; and was able to maintain his personal appearance. The October 2010 VA psychiatric evaluation and the April 2012 letter from Dr. M.Y. were raised by the Veteran’s representative in the joint motion as being evidence that the Board should have considered in determining entitlement to a TDIU rating. Specifically, the Veteran’s then representative wrote that the Veteran had been found to have below average intelligence (in the October 2010 VA examination) and that the Veteran’s therapist had opined that the Veteran had extreme difficulty every day of his life and led a life of severe isolation and alienation, which findings were relevant to the issue of whether the Veteran is entitled to a TDIU rating. The Board finds the Veteran’s October 2010 VA examination to be less probative than the more recent VA examinations that took place during the period on appeal. Therefore, it is less indicative of the Veteran’s level of functioning during the period on appeal. In the October 2010 examiner report, the examiner made comments that would indicate that the Veteran may have not been responding appropriately to the questions asked. For example, she noted that it required four trials for the Veteran to register the names of 3 objects, which she described as “highly unusual.” She wrote that the Veteran was “only able to recall 1/3 names of objects after a 5 minute delay[,] which is highly suspicious.” She wrote that the Veteran’s psychological testing was of “questionable reliability and validity” and added that since this particular testing (MMPI-2) was the “gold standard in psychodiagnostic testing, this calls into question the reliability and validity of the remaining inventories.” Thus, these are additional reasons for why the Board accords lessened probative value to the October 2010 finding of below-average intelligence, since there were findings by the examiner that the Veteran was not necessarily cooperating during the testing and the face-to-face examination. Furthermore, the Veteran’s later August 2013 VA psychiatric examination documented that the Veteran exhibited average intelligence. Additionally, the Board acknowledges the severe symptoms of PTSD reported by Dr. M.Y. in the April 2012 letter and that the Veteran has since received a 70 percent rating for his PTSD, which reflects severe symptomatology. However, the standard for TDIU is not whether the Veteran has severe symptoms as those severe symptoms are reflected by the award of an increased rating for PTSD, but rather, whether the Veteran is able to obtain and maintain substantially gainful employment. The Board finds that the Veteran’s PTSD, even when combined with his other physical limitations, does not prevent the Veteran from maintaining his hygiene, communicating, and developing relationships—especially in a more solo work environment. Thus, even if the Board accepted Dr. M.Y.’s finding that the Veteran was exhibiting severe isolation, it does not find that such establishes that the Veteran is precluded from securing and maintaining gainful employment. At the August 2013 VA psychiatric evaluation, the Veteran told the examiner that he helped out at the church a couple of times a week. In the January 2017 VA psychiatric evaluation report, the examiner wrote that the Veteran remained married to his wife of 38 years and that the relationship was more stable now than it had been in the past and that the Veteran stays in touch with his children. These descriptions tend to show that the Veteran was not totally socially isolated. It is unclear what Dr. M.Y. meant when he wrote that the Veteran was experiencing severe isolation, but the Board finds that this description does not establish a basis to award a TDIU rating, since the Veteran was continuing to maintain relationships both inside and outside of his family. The Veteran’s more recent VA psychiatric examinations document that the Veteran’s intelligence is average, and, though he still displays irritable behavior, panic, and depression, he no longer expresses suicidal ideation, is able to understand complex commands—exhibiting no impairment in his judgment or abstract thinking. The October 2010 finding of below-average intelligence is outweighed by other examination reports, wherein multiple examiners found the Veteran to have average intelligence. Notably, at his August 2013 VA psychiatric examination the Veteran specifically reported he was able to complete tasks so long as he did not have to perform significant physical labor. A VA examination conducted in June 2016 documented that the Veteran’s bilateral hearing loss disability, tinnitus, and diabetic nephropathy did not cause functional impairment. The preponderance of the evidence of record, including the Veteran’s own reports that he was a “workaholic” prior to his back injury and his reports that his back injury in 1992 was a major factor in his retirement at the paper mill, supports a finding that the Veteran’s nonservice-connected back injury is the main disability impacting the Veteran’s employment, not the Veteran’s service-connected disabilities. The Board acknowledges that the Veteran’s service-connected disabilities would limit the Veteran’s ability to engage in heavily physical employment—including lifting, pulling, reaching, or prolonged ambulation—and his ability to consistently interact with others and engage in team-centered activity. However, the Board finds the Veteran would be able to perform many types of employment including clerical work and administrative work, such as data entry or telemarketing. The Board acknowledges that the Veteran has a limited educational background, but the Veteran also has significant work experience as well as a history of starting his own businesses that would qualify him for many jobs in which both his physical and mental impairments could be reasonably accommodated. The Board acknowledges that the Veteran’s service-connected disabilities, specifically his neuropathy and ischemic heart disease, would likely prevent the Veteran from returning to work as a chief operator at a paper mill or any other manufacturing position. However, the standard for entitlement to TDIU is not whether the Veteran can return to the Veteran’s previous employment, but rather, whether or not the Veteran’s service-connected disabilities prevent employment of any kind after considering his education and previous work experience. As noted above, the Board finds the Veteran is qualified for, and able to engage in, numerous other types of employment, despite his service-connected disabilities. As the more probative evidence suggests that the Veteran’s service-connected disabilities do not prevent the Veteran from obtaining and maintaining substantially gainful employment, entitlement to a TDIU rating is denied. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Keninger, Associate Counsel