Citation Nr: 18155700 Decision Date: 12/06/18 Archive Date: 12/04/18 DOCKET NO. 15-29 921 DATE: December 6, 2018 ORDER Entitlement to a total disability rating based on individual unemployability as a result of service-connected disability (TDIU) is denied. FINDING OF FACT The Veteran’s service-connected disabilities do not cause him to be unable to secure or maintain a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to a TDIU are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty in the U.S. Army from September 1967 until July 1969. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a June 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist, nor has any issue been raised by the record. 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 a duty to assist argument). 1. Entitlement to a TDIU TDIU may be assigned where the schedular rating is less than total, when a veteran 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 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). The Veteran’s service connected disabilities include prostate cancer residuals, PTSD, diabetes mellitus with erectile dysfunction, fracture residuals of the right navicular bone, bilateral hearing loss, and tinnitus. Excluding a period of temporary total disability due to hospitalization from July 30, 2011 until August 31, 2011; the Veteran has met the schedular requirement for a TDIU since September 1, 2011 when his service-connected PTSD was rated at 50 percent and his combined disability rating was 70 percent. Prior to July 30, 2011, the Veteran did not meet the schedular requirement for a TDIU because he was service-connected for multiple disabilities, however a disability was not rated at 40 percent or higher and his combined disability rating was less than 70 percent. The Veteran’s claim for a TDIU was raised in September 2010, thus the period on appeal includes consideration of entitlement to an extraschedular TDIU prior to July 30, 2011 and entitlement to a schedular TDIU from September 1, 2011 onward. The Veteran asserts he is no longer able to maintain employment consistent with his education and experience as a result of service-connected disabilities. On his September 2010 application for TDIU benefits, the Veteran indicated that he graduated high school and had some college education. He reported no other educational or training experience, except that he worked on a farm after retirement. See August 2008 private treatment record. The Veteran has worked for a railroad company since separation from service, and last worked in the position of Manager of Load engineer from 1996 until his retirement in 2007. See August 2010 employer statement; see September 2010 application for TDIU benefits. The evidence generally demonstrates the Veteran has some general college education, specialized experience in the railroad industry, managerial experience, and farming experience. In his original TDIU claim, the Veteran reported he was prevented from working due to PTSD and diabetes mellitus. See September 2010 application for TDIU benefits. The Veteran’s job duties included extensive travel and being on call to deal with train derailments. See August 2010 employer statement. Although the Veteran reported that he missed 125 days in 5 years due to service-connected PTSD and diabetes, the Veteran’s employer wrote that no concessions were made due to disability and the Veteran took no time off due to disability during the last 12 months he was employed. See August 2010 employer statement; see September 2010 application for TDIU benefits; see February 2011 employer statement. Rather, the employer wrote that the Veteran was frequently called away to handle train derailments, and was always alert and ready to report. See August 2010 employer statement. The Veteran primarily asserts that his PTSD and PTSD medication prevent him from working in his usual occupation. Private treatment records from April 2007 document that the Veteran had been under a lot of stress at work, but was coping well and did not feel nervous or depressed. At that time the Veteran planned to retire in 2 weeks. At a February 2010 VA PTSD examination, the Veteran reported that he retired early at his doctor’s recommendation due to his inability to cope with work related stress. At an April 2011 VA PTSD examination, the Veteran denied missing time on the job due to psychiatric complaints, but reported that at times he was not as productive or efficient, particularly when traveling or under other additional stressors. He said that he had problems on the job due to anxiety, but he kept those problems to himself. At an August 2015 VA PTSD examination, the Veteran reported that he retired as soon as he was eligible from age because he was “fed up with the political environment on the job.” The Veteran’s reports of functional impairment in his prior position are somewhat inconsistent, particularly with regard to the circumstances surrounding his retirement and the amount of leave he took for disability when he was still employed. As a result, the Veteran’s testimony is considered less credible than the employer’s statements regarding how many days the Veteran missed work due to disability, and the employer’s report of the Veteran’s functioning when he was still employed. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence), aff’d, 78 F.3d 604 (Fed. Cir. 1996). The Veteran underwent VA mental disorder examinations in February 2010, April 2011, December 2011, September 2014, and August 2015. At those examinations, the Veteran reported symptoms of sleep impairment, anxiety, irritability, difficulty controlling his temper, depressed mood, panic attacks occurring weekly or less often, mild memory loss, disturbances of motivation and mood, difficulty establishing and maintaining effective relationships, and suicidal ideation without intent or plan. The Veteran generally reported that he spent his time caring for his teenage daughters, doing chores inside and outside of his home, running errands, and taking his daughter to medical appointments. See April 2011 VA examination report; see September 2014 VA examination report. After review of the Veteran’s reported symptoms, none of the VA examiner’s concluded that the Veteran was totally occupationally impaired due to PTSD. At worst, the 2011 and 2014 VA examiners assessed the Veteran as having occupational impairment with reduced reliability and productivity, but not total occupational impairment. The Veteran’s private treatment providers have submitted evidence that the Veteran is unable to work in his previous position due to PTSD symptoms, however those treatment providers did not address whether employment would be prohibited in another occupational setting due to PTSD. In August 2015, the Veteran’s physician, Dr. S, wrote that the Veteran was currently employed as a railroad company field manager but was having difficulty performing his duties in part due to PTSD. Dr. S wrote that the Veteran worked in a highly stressful position that required him to be on call at all hours, that he was responsible for the safety of the responding contracts, and had oversight and coordination of heavy equipment. The Veteran’s medications prescribed to treat PTSD were making it impossible for him to perform that job due to their sedating effects, and the Veteran was required to be on call at all times. Although Dr. S mistakenly reported the Veteran remained currently employed, he otherwise adequately explained how the Veteran was precluded from working in his prior position as a field manager due to service-connected PTSD. Nevertheless, Dr. S’s opinion does not address whether the Veteran would be precluded from working in a different position or occupation due to PTSD, such as less stressful position with less responsibility. Overall, the August 2015 statement does not demonstrate that the Veteran is unable to follow or maintain a different occupation consistent with his education and experience due to PTSD. In October 2015, a private psychiatrist wrote that the Veteran had debilitating panic attacks around people and was unable to function as a result. The October 2015 psychiatrist’s assessment does not comport with other available contemporaneous records, and is not afforded significant weight. In December 2014 the Veteran reported that he had not had a panic attack in a month and had increased his activities outside of the home, although he still avoided crowds. At the August 2015 VA PTSD examination report, the Veteran reported good relationships with family members, and that he interacted “okay” with people outside of his family. The October 2015 private assessment appears to be overly broad in light of the Veteran’s testimony and other available treatment records. While the Veteran may have increased difficulty and risk of panic attacks in crowds, that does not preclude employment in an environment where the Veteran is not required to interact with crowds. To summarize, the available evidence does not demonstrate that PTSD precludes gainful employment in this Veteran’s case. The Veteran’s diabetes mellitus has not been shown to result in any significant functional impairment. April 2011 and July 2015 VA examiners reported that the Veteran’s diabetes mellitus caused no functional limitation or impairment of physical labor. The Veteran’s physician has reported that the Veteran had fluctuations of blood pressure due to diabetes, and would become light-headed and dizzy thus impairing his ability to work. See August 2015 Dr. S letter. The Veteran previously requested service-connection for hypertension and was denied in an June 2010 rating decision, therefore the Veteran is not service-connected for blood pressure problems related to diabetes. There is no evidence available showing any significant functional impairment due to service-connected diabetes with erectile dysfunction. The evidence shows that the Veteran’s prostate cancer residuals are characterized by voiding dysfunction with frequent urination that would require access to bathroom facilities. See August 2014 VA examination; see August 2015 Dr. S letter. Provided the Veteran has access to bathroom facilities, the evidence does not show any functional impairment due to prostate cancer residuals. Regarding the right wrist, in February 2010 the Veteran reported that right hand pain caused pain made it difficult to drive a tractor, handle livestock, or work on his property. At an April 2011 VA examination, the Veteran reported that he had constant, moderate flare ups during cold weather that he estimated would limit “maybe 70 percent of activities.” Physical examination showed mild tenderness to palpation, but no objective evidence of functional limitation. The examiner concluded that the Veteran’s right wrist fracture residuals did not impair his ability to seek employment. At a December 2011 VA examination, the Veteran again reported that his right wrist pain restricted much of his functioning, and clarified that he was no longer able to play golf or go fishing. December 2011 private treatment records document that right wrist pain was moderate to severe with moderate functional impairment, which was characterized as interference with some daily activities. In January 2012, the Veteran wrote he was unable to play golf, fish, bowl, or attempt recreational activities due to right wrist pain. In August 2015, Dr. S wrote that the Veteran’s right hand arthritis made it difficult for the Veteran to climb. An April 2011 VA examination report documents a history of right wrist navicular fracture with current pain and weakness. The December 2011 VA examiner reported that there were no functional limitations from the right navicular fracture, and explained that the subjective complains and clinical responses did not appear to be adequately explained by the objective medical evidence. The most favorable evidence shows that the Veteran’s right wrist fracture residuals limits his ability to pursue certain recreational activities, climb, drive tractors, handle livestock, and work on his property. Nevertheless, the available evidence does not show that right wrist pain and functional impairment would preclude less physical work, particularly any kind of work that is less physically demanding on the right hand. The only functional impairments due to bilateral hearing loss and tinnitus are difficulty hearing conversational speech, the television, and over the telephone. See April 2011 VA examination report. The Veteran’s physician also reported that the Veteran felt unsafe around heavy machinery due to his hearing problems. See August 2015 Dr. S statement. While the Veteran has some difficulty hearing in these contexts, the evidence does not support a finding that bilateral hearing loss or tinnitus precludes employment, other than perhaps a position that involved heavy machinery. In October 2012, the Veteran’s primary care physician wrote that the Veteran was unable to be gainfully employed due to multiple health conditions that impaired his ability to function in a normal work setting. Dr. M reported the Veteran had chronic back pain due to spondylosis, prostate cancer, chronically hypofunctioning right kidney, and other chronic health conditions that required medical care. The combination of the conditions rendered him incapable of being at work on a regular schedule. Service connection is not in effect for spondylosis or chronically hypofunctioning right kidney, thus the October 2012 physician statement does not demonstrate that the Veteran is unemployable due to service-connected disabilities alone. Review of the available evidence demonstrates that entitlement to a TDIU is not warranted on either a schedular or extraschedular basis as the Veteran is not precluded from obtaining or maintaining a substantially gainful occupation solely due to service-connected disabilities. The service-connected disabilities, either alone or in combination, do not appear to significantly limit the Veteran in an occupational setting that requires less physically strenuous work, that does not involve interacting with crowds, that is less stressful than his prior position as a field manager responsible for train derailments, and that has access to restroom facilities. While it is clear that the Veteran may be unable to return to his former position, the evidence does not show that he is precluded from less physically strenuous employment consistent with some college training and managerial experience. Thus, entitlement to a TDIU on a schedular or extraschedular basis is denied. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Smith, Associate Counsel