Citation Nr: 1807942 Decision Date: 02/07/18 Archive Date: 02/20/18 DOCKET NO. 12-06 118 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities prior to May 29, 2012, or due solely to service-connected posttraumatic stress disorder (PTSD) with alcohol abuse as of May 29, 2012. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Alexander Panio, Counsel INTRODUCTION The Veteran served on active duty from November 1968 to November 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2016 the Board denied the claim on appeal. Thereafter, the Veteran appealed such decision to the United States Court of Appeals for Veterans Claims (Court). In August 2017, the Court granted the Veteran's and the Secretary of VA's Joint Motion for Remand (JMR), which vacated and remanded the Board's decision for action consistent with the JMR. FINDINGS OF FACT 1. Prior to May 29, 2012, the Veteran was engaged in substantially gainful employment. 2. As of May 29, 2012, the Veteran was not rendered unable to secure or follow a substantially gainful occupation solely due to his PTSD with alcohol abuse. CONCLUSION OF LAW The criteria for entitlement to a TDIU due to service-connected disabilities prior to May 29, 2012, or due solely to service-connected PTSD with alcohol abuse as of May 29, 2012, are not met. 38 U.S.C. §§ 5110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 4.16, 4.18 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Preliminary Matters The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Neither the Veteran nor his representative has alleged any deficiency with respect to VA's duties to notify or assist. See Scott, supra (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). Furthermore, when an attorney agrees to a JMR based on specific issues and raises no additional issues on remand, the Board is required to focus on the arguments specifically advanced by the attorney in the motion. Carter v. Shinseki, 26 Vet. App. 534, 542-43 (2014) (citing Forcier v. Nicholson, 19 Vet. App. 414, 426 (2006)), vacated and remanded sub nom Carter v. McDonald, 794 F.3d 1342 (Fed. Cir. 2015). In the instant case, the JMR found that the Board, in denying a TDIU prior to May 29, 2012, did not provide adequate reasons and bases for its finding that the Veteran's employment was not marginal in nature, and failed to adjudicate whether the Veteran is entitled to a TDIU based solely on his service-connected PTSD with alcohol abuse as of May 29, 2012, for the purposes of establishing entitlement to special monthly compensation (SMC) as of such date pursuant to Bradley v. Peake, 22 Vet.App. 280, 293 (2008) and Buie v. Shinseki, 24 Vet.App. 242, 250 (2011). II. Analysis Total disability ratings for compensation 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 service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App.447, 452 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in 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. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). For purposes of entitlement to a TDIU, marginal employment is not considered to be substantially gainful employment. Marginal employment is generally deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(a). Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Id. The Board notes initially that the Veteran has met the required disability percentage threshold for consideration of TDIU on a schedular basis throughout the appeal period. 38 C.F.R. § 4.16(a). A. Prior to May 29, 2012 The parties to the JMR found that the Board erred by not addressing "whether [the Veteran]'s self-employment at his car wash constitutes a 'family business' and/or 'sheltered workspace,' such that his employment was in a protected environment and may, therefore, be considered 'marginal.'" The Veteran contends that he was only marginally employed on February 16, 2011, the date he filed his claim for TDIU, and thereafter because his employment was in a "protected environment," i.e., his own business, that provided accommodations that ordinarily would not be extended to an employee. See November 2017 brief. The Board notes that there are multiple inconsistencies in the Veteran's statements concerning the nature and duration of his employment that significantly undermine his credibility concerning his employability prior to May 29, 2012. In his February 2011 application for TDIU, the Veteran reported that he had last worked full-time "2 years ago," (roughly February 2009) and that he became too disabled to work due to "agent orange" in August 2010. He also reported that he worked 60 hours per week from 1991 to 2011 and had earned $29,200 in the previous 12 months. A month later in March 2011, the Veteran submitted a second application for TDIU benefits, at which time he reported that he was prevented from securing substantially gainful employment due to PTSD, diabetes, and heart problems. He stated he last worked full time in December 2010 and became too disabled to work in 2010. He reported having earned $20,000 in the previous 12 months. A request for employment information from the Veteran's car wash was received the same month and stated that his employment ended altogether in 2010 and that he last worked on December 31, 2010. However, treatment records show that he was working regularly in February 2011 and he reported being employed full-time in March 2011. See February 2011 psychiatric treatment note, March 2011 VA examination reports. The Veteran later reported that he quit working at "some point in 2012." See November 2017 statement. The Veteran has submitted income tax filings show that he earned over $21,000 in 2011 and over $25,000 in 2012, despite professing to work only part-time or not at all. In this regard, while the Veteran reported that only $10,800, was income from the car wash in 2012, he did not explain the nature of the remaining amount of his income. Furthermore, these amounts are greater than the $20,000 he reportedly earned in 2010, when he was working 60-80 hours per week. In view of these numerous contradictory statements, the Board does not find the Veteran's contentions regarding his employment to be particularly credible. In any event, the Veteran does not argue that his income was below the poverty threshold during this period; rather, he contends that, regardless of the level of his income, his employment was protected and, thus, marginal in nature. In this regard, in March 2011, the Veteran underwent a VA PTSD examination where he reported being employed full-time as the manager of the car wash he owned for the last 20 years and losing no time from work during the previous 12 months. He reported occasionally feeling that the need to isolate and going in to his office and shutting the door. He also reported that he avoided "run-ins" with people. The examiner noted that the Veteran's symptoms of PTSD seemed to be managed well with psychotherapy, except for sleep, and that the Veteran reported no issues at work related to PTSD save for having to go to his office and close the door once in a while when he felt too stressed out. The examiner noted that the Veteran had no significant difficulty with work schedule adherence, maintained a positive relationship with employees, had a good manager working for him for 20 years with whom he had a good working relationship (however, the Veteran later stated that he hired a manager in 2011, see November 2017 statement), and had a good ability to communicate with customers and/or vendors (i.e., the Veteran reported no difficulty with patrons of his car wash). The examiner concluded that the Veteran's PTSD symptoms had only a mild impact on his ability to maintain gainful employment. October 2011 psychiatric treatment records show the Veteran to be doing well with no complaints in either his work life or social life. He indicated that he was impatient at times and recently was impatient with a customer. At a February 2012 VA examination, the Veteran reported working less in the last several months because of problems with customers and employees, was more short tempered, mostly stays in his office every day before customers arrive, and had withdrawn from customer contact due to his temper. He was noted to have difficulty, although not inability, in maintaining effective work and social relationships. In April 2012, the Veteran reported experiencing trouble with a customer, but walked away before things got physical. In May 2012, the Veteran noted that one of his long-time employees asked him to have less contact with customers and staff. The Veteran explained that he had been having a little difficulty with controlling his irritability, but added that he did not notice it but was told this. He also reported having a manager who runs the business for him. The Veteran has characterized his employment at the car wash he owns as a protected environment. The Board disagrees. While "marginal employment" and "protected environment" are not precisely defined in the regulations, the Veteran appears to assert that, because he was self-employed and could change his hours or duties, his employment was protected. However, the Board finds that, while the Veteran was able to reduce his hours or retreat to his office when he was frustrated with his employees or customers, such is not tantamount to working in a protected environment. See Faust v. West, 13 Vet. App. 342, 356 (2000) (self-employed business owner working 2-3 days per week but responsible for hiring employees and occasionally meeting with clients found not to be a protected environment). In this regard, while the November 2017 brief states that "during the entire period at issue - February 16, 2011 onward - [the Veteran] was working at most only part-time," the JMR indicated that the record reflected that the Veteran began working fewer hours per week as of February 2012. Furthermore, such is inconsistent with the Veteran's contemporaneous statements to treatment providers. See March 2011 VA examinations. Moreover, the Veteran has referred to his position as owner, manager, and attendant and, while his precise daily duties are unclear, he was responsible for hiring employees, working with them on a daily or semi-daily basis, and managing at least some details of the operation. His only accommodation appears to be that he reduced his hours as needed and had an office, which he utilized when frustrated with customers or employees or otherwise. As the Veteran was the owner and self-reported manager of his business, it is unclear how having flexible hours and utilizing an office would be a special accommodation. In consideration of the foregoing, the Board finds that the Veteran was engaged in substantially gainful employment prior to May 29, 2012. Therefore, entitlement to a TDIU is not warranted during such period. 38 C.F.R. § 4.16(a) B. Since May 29, 2012 The parties to the JMR found that the Board erred when it failed to adjudicate "whether [the Veteran] is entitled to TDIU based on his PTSD alone from May 29, 2012, and if so, whether he is entitled to [SMC] from May 29, 2012." The Veteran contends that he should be entitled to TDIU based on his PTSD alone and that, therefore, SMC would be warranted as of May 29, 2012. The Board finds that the Veteran is not be entitled to TDIU based solely on his service-connected PTSD and alcohol abuse as of May 29, 2012. An addendum opinion received in June 2012 specifically addressing the Veteran's employability found that his service-connected psychiatric disability "has some limiting effect on his work ability due to increased irritability around customers, but it does not render him unemployable if he manages a business with limited customer contact." This is further supported by the findings of the February 2012 VA examination that noted that the Veteran's disability would have significant effects on his work, but would not result in total occupational impairment. Moreover, the Board notes that the Veteran has reporting working in multiple positions over the years, some of which, such as working in construction or farming, would require little to no contact with customers. See e.g. February 2009, March 2010 VA treatment records). While these pursuits would likely be significantly impacted if not prevented by his other service-connected disabilities, they would not be prohibited by his psychiatric symptomatology alone. The Board therefore finds that a TDIU based solely on the Veteran's service-connected PTSD with alcohol abuse as of May 29, 2012, for the purposes of establishing entitlement to SMC as of such date is not warranted. C. Conclusion Therefore, based on the foregoing, the Board finds that the criteria for entitlement to a TDIU due to service-connected disabilities prior to May 29, 2012, or due solely to service-connected PTSD with alcohol abuse as of May 29, 2012, are not met. In reaching such decision, the Board has considered the application of the benefit-of -the-doubt doctrine. However, as the preponderance of the evidence is against the claim, such is not applicable and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. ORDER A TDIU due to service-connected disabilities prior to May 29, 2012, or due solely to service-connected PTSD with alcohol abuse as of May 29, 2012, is denied. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs