Citation Nr: 18155394 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 11-26 030 DATE: December 4, 2018 ORDER Entitlement to a total disability rating due to individual unemployability (TDIU) prior to December 18, 2009 is denied. FINDING OF FACT Prior to December 18, 2009, the Veteran’s service-connected disabilities did not preclude him from securing and following a substantially gainful employment consistent with his educational and occupational background. CONCLUSION OF LAW Prior to December 18, 2009, the criteria for an award of TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1968 to January 1971. In a February 2010 rating decision, the RO concluded the Veteran was entitled to TDIU, effective December 18, 2009. In September 2011, the Veteran filed a Form 9 and declined a Board hearing. In September 2017, the Board remanded the claim so that a retrospective opinion could be obtained regarding the functional impairment caused by the Veteran’s PTSD and diabetes mellitus, singly and jointly, without consideration of his nonservice-connected disabilities, prior to December 18, 2009. Subsequently, the Veteran submitted to October 2017 VA PTSD and diabetes examinations. The PTSD examiner indicated that the requested opinion could not be provided without resorting to speculation due to minimal VA treatment records during the relevant period, the Veteran’s conflicting employment history, and the inability to separate symptoms of the service-connected PTSD from symptoms of the nonservice-connected depression. The October 2017 VA PTSD examiner fully explained her inability to render the necessary opinion. See Jones v. Shinseki, 23 Vet. App. 382 (2010). The diabetes examiner found that the Veteran’s functional impairments prior to December 18, 2009 were related to his end stage kidney disease and not his diabetes. She deferred to the PTSD examiner with respect to functional impairment due to the Veteran’s mental health. The Board determines that there has been substantial compliance with the September 2017 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that remand not required where there was substantial compliance with remand directives). Additional evidence in the form of VA treatment records was received after the August 2018 Supplemental Statement of the Case was issued. This evidence is not pertinent to the claim adjudicated herein. Thus, remand for consideration of this evidence by the agency of original jurisdiction (AOJ) is not warranted. Entitlement to TDIU prior to December 18, 2009 The Veteran contends he is entitled to TDIU prior to December 18, 2009, based on the date when he filed his application for TDIU in March 2005. Prior to December 18, 2009, the Veteran was service-connected for PTSD, rated 50 percent disabling, and diabetes mellitus, type II, with erectile dysfunction, rated 20 percent disabling. His combined evaluation was 60 percent and he did not meet the schedular criteria for a TDIU rating prior to December 18, 2009. See 38 C.F.R. § 4.16 (a). All cases of veterans who fail to meet the percentage standards for TDIU under 38 C.F.R. § 4.16 (a), but who are unemployable by reason of service-connected disabilities, should be submitted to the Director, Compensation Service, for extraschedular consideration under 38 C.F.R. § 4.16 (b). The Board has no authority to award TDIU under § 4.16(b) in the first instance. Rather, the rating board must submit to the Director, Compensation and Pension Service for extraschedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). Bowling v. Principi, 15 Vet. App. 1, 10 (2001). If the Director denies the extraschedular TDIU, the Board has jurisdiction to grant or deny the appeal, or remand for additional development and the Director’s decision is the same as the RO’s as far as the Board’s jurisdiction and standard of review. Wages v. McDonald, 27 Vet. App. 233, 238 (2015). In determining employability for VA purposes, consideration is given to the level of education, special training, and work experience, but not to age or nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16(a), 4.19; see also Faust v. West, 13 Vet. App. 342 (2000). The question is whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). The veteran does not have to be 100 percent unemployable in order to be entitled to TDIU. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). When there is an approximate balance of positive and negative evidence as to any issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107. “Substantially gainful employment” is that employment “which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). As further provided by 38 C.F.R. § 4.16 (a), “marginal employment shall not be considered substantially gainful employment.” VA treatment records dated in February 2005 note that the Veteran suffered from numerous disabilities, to include diabetes mellitus, renal failure, anemia, chronic pancreatitis, Addison’s disease, anxiety disorder, PTSD, cystitis, and hypertension. He was working part-time at an adult daycare facility. He also served as a pastor. The Veteran’s emotional, behavioral, and social status was found to be stable. In March 2005 the Veteran submitted a formal TDIU application, which indicates that he worked 20 hours per week as a program assistant for Positive Maturity from May 1, 2000 to February 14, 2005. He indicated that he had quit because of his poor health, namely, his PTSD and diabetes. A March 2005 VA treatment record notes that the Veteran’s diabetes was relatively well controlled. In April 2005, the Veteran submitted a VA Form 4192 from Positive Maturity. The work schedule and dates of employment are similar to what the Veteran provided in his TDIU application. In response to the question about concessions made to the employee, the employer wrote “employee was stressed and could no longer perform duty of work.” In response to the question about the reason for termination/retirement, the employer wrote “illness prevent[s] him from working.” The Veteran submitted to a May 2005 VA PTSD examination. The examiner noted that the Veteran had multiple medical problems, including service-connected diabetes and PTSD and nonservice-connected pituitary prolactinoma, pancreatitis, end stage renal disease on dialysis, restless leg syndrome, and gout. The examiner noted that the Veteran last worked in February 2005 and had stopped working secondary to pancreatitis. The examiner indicated that the Veteran’s service-connected PTSD limited his occupational employment activity. He opined that it was not likely the Veteran would be able to work again because of his combined illness. The Veteran also submitted to a May 2005 general medical examination. He reported that he was unable to work due to fatigue and general ill health. The examiner found that the Veteran was unemployable as a result of his numerous medical conditions, most significantly chronic renal disease, chronic pancreatitis, and Addison’s disease. A November 2006 private treatment record shows that the Veteran’s diabetes had increased in severity over the past several months and now required medication. The Veteran submitted to a December 2007 VA genitourinary examination. The examiner noted that the Veteran had previously worked as a program director at an adult daycare center. Although he no longer worked, he continued to serve as a minister. The Veteran submitted to a June 2008 VA PTSD examination. He reported that he had retired in 1999 due to pancreatitis. The examiner noted that the Veteran had frequent, chronic, and severe bouts of pain due to pancreatitis. He also noted that sleep apnea caused exhaustion and interfered with daytime activities. The examiner found that there was moderate impairment in functional status and quality of life due to PTSD. He concluded that the Veterans’ PTSD symptoms, including avoidance and hypervigilance, reduced his reliability and productivity for physical and sedentary employment. VA treatment records dated in December 2008 note chronic PTSD, depression, and alcohol abuse. During a December 14, 2009 VA PTSD examination, the Veteran reported that his PTSD had worsened a few months earlier. He had retired 4-5 years earlier due to physical and psychiatric problems, stating that he “got stressed out.” The examiner diagnosed chronic PTSD, depressive disorder not otherwise specified, and alcohol abuse. The examiner found it likely that the Veteran’s current depression was related to his “significant medical problems.” He acknowledged reduced reliability and productivity due to PTSD symptoms, but found that these symptoms had not changed significantly since the June 2008 VA examination. He also acknowledged impaired concentration/attention and memory, and determined that this would create moderate to moderately severe impairment in occupational functioning. Specifically, the Veteran could not function in work that required close attention or that involved complex tasks. On remand, the Veteran submitted to an October 2017 VA PTSD examination. He stated that he received his college degree in 1994. He subsequently worked as a supervisor at a workplace for people with developmental disabilities. He worked at that job for 3-4 years, but had to leave after his kidney transplant was rejected. Afterwards he received Social Security disability. From 2000 to 2005, he worked part-time as a coordinator at an adult daycare facility. He assisted clients with cooking, exercising, and getting off the bus. He became worried that he was developing Alzheimer’s like his clients and so decided to quit. He denied having any problems on the job. He indicated that he had not worked since 2005. The examiner concluded that she was unable to provide a retrospective opinion on the functional impairment caused by the Veteran’s PTSD prior to December 18, 2009 without resorting to speculation. First, she explained that treatment records from that period “are very limited in the information offered.” Second, she explained that such an opinion would require the Veteran to provide a detailed account of work history. The examiner noted that the Veteran had “significant difficulty providing [a] detailed work history” and “provided contradictory information” compared to information contained in the contemporaneous treatment records. In addition, the Veteran denied ever being fired from a job or missing a significant amount of time from work. He reportedly was a “people person” and “got along with everyone.” Finally, the examiner noted that the Veteran’s depressive disorder is related to his chronic medical conditions, and that while this condition impacts occupational impairment, it is “not possible to parcel out the independent contributions of each condition on occupational impairment.” The Veteran also submitted to an October 2017 VA diabetes examination. The examiner reviewed the claims file and considered the Veteran’s education, training, and previous work experience. She noted that the Veteran’s highest hgbA1c was 6.7 in 2006, which is well controlled. His hgbA1c was 6.2 in September 2009. She noted that the December 2009 VA diabetes examination showed mild bilateral neuropathy of the upper and lower extremities. The examiner concluded that the Veteran’s functional impairments at that time were related to his end stage kidney disease and not his diabetes with erectile dysfunction. The preponderance of the evidence does not show that the Veteran’s service-connected diabetes mellitus and PTSD precluded him from participating in all forms of regular substantially gainful employment prior to December 18, 2009. Rather, there were other nonservice-connected disabilities that impacted the Veteran’s employability during this period. In March 1996, the Veteran was awarded Social Security disability. However, disability was awarded based on chronic renal failure and hypertension. As such, the Social Security disability finding is not probative as to whether the Veteran’s service-connected PTSD and diabetes preclude him from participating in all forms of regular substantially gainful employment. The Board acknowledges that VA examiners have been unable to consistently and/or clearly delineate symptoms from the Veteran’s service-connected PTSD and nonservice-connected depressive disorder. Thus, the Board has considered all of the Veteran’s psychiatric symptoms for the period in question. See Mittleider v. West, 11 Vet. App. 181 (1998). While the Veteran’s psychiatric symptoms may have impacted negatively upon his employability, they were not so severe as to preclude his participation in substantially gainful occupation, given his background and education. The Veteran submitted to three PTSD examinations between March 2005 and December 2009. Although he was noted to have some impairment in memory and concentration, as well as irritability and depression, none of the examiners found him unable to work due to his psychiatric symptoms. In addition, the medical evidence shows that the Veteran’s diabetes was under control with diet and medication prior to December 18, 2009. The October 2017 VA diabetes examiner reviewed the medical evidence, noted the well-controlled A1c levels, and specifically found that the Veteran’s functional impairments during this time were due to his nonservice-connected kidney disease and not his diabetes Moreover, the Board finds that that the Veteran stopped working because of his nonservice-connected physical problems and not due to his psychiatric impairments. Although the Veteran indicated on the TDIU application that his PTSD and diabetes prevented him from working, he has repeatedly made contradictory statements. Specifically, the Veteran reported to the May 2005 PTSD examiner that he had quit working because of his pancreatitis, while he reported to the May 2005 general medical examiner that he had quit working due to fatigue and his “ill health.” Similarly, he told the June 2008 PTSD examiner that he had quit working due to pancreatitis. He reported to the October 2017 PTSD examiner that he quit because he was worried he was getting Alzheimer’s. In light of these inconsistent accounts, which impact negatively on the Veteran’s credibility, the Board cannot assign any significant probative value to his reports of leaving his job due to PTSD symptoms. After considering the probative value of the evidence in this case, the Board finds that the evidence against the Veteran’s claim for a TDIU for the period prior to December 18, 2009 to be more probative than the evidence in favor of the claim. Although the Veteran may have had some occupational impairment resulting from his service-connected PTSD and diabetes prior to December 18, 2009, as contemplated by the combined 60 percent combined rating assigned during the   period in question, the evidence does not establish that these conditions alone precluded his participation in substantially gainful employment. Thus, referral for extraschedular consideration for TDIU prior to December 18, 2009 is denied. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R.N. Poulson, Counsel