Citation Nr: 1809048 Decision Date: 02/12/18 Archive Date: 02/23/18 DOCKET NO. 11-07 563 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to October 22, 2013. REPRESENTATION Veteran represented by: Arizona Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Ben Winburn, Associate Counsel INTRODUCTION The Veteran had active service from December 1967 to November 1970, to include service in the Republic of Vietnam. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Jurisdiction over the case was subsequently transferred to the VARO in Phoenix, Arizona. In March 2016, the Veteran was afforded a travel board hearing. A transcript of that hearing is associated with the claims file. However, the Veterans Law Judge who presided over that hearing is no longer employed at the Board. In a November 2017 letter, he was offered the opportunity to have a hearing before a current member of the Board. He did not respond within the allotted time and the Board will proceed to adjudicate the claim. This case was previously before the Board, most recently in February 2017, at which time the issue was remanded for additional development. The case has now been returned to the Board for further appellate action. FINDING OF FACT Prior to October 22, 2013, the Veteran's service-connected disabilities did not render him unable to obtain and maintain gainful employment. CONCLUSION OF LAW Prior to October 22, 2013, the criteria for entitlement to a TDIU were not 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 contends that his service-connected disabilities rendered him unable to obtain and maintain substantially gainful employment prior to October 22, 2013, the effective date of the TDIU, which matches the effective date (date of claim) for his PTSD rating, which was increased to 70 percent disabling. Thus, the focus of the inquiry is whether his service-connected disabilities, prior to an increase in his PTSD disability rating, rendered him unemployable and therefore unable to obtain and maintain substantially gainful employment. Prior to October 22, 2013, the Veteran was service-connected for posttraumatic stress disorder (PTSD) with major depressive disorder (MDD), rated 50 percent disabling; diabetes mellitus type 2 (DM2), rated 20 percent disabling; peripheral neuropathy, left lower extremity, rated 10 percent disabling; peripheral neuropathy, right lower extremity, rated 10 percent disabling; and tinnitus, rated 10 percent disabling. The combined rating was 70 percent from December 2010. Therefore, he met the schedular criteria for assignment of a schedular TDIU prior to October 22, 2013. 38 C.F.R. § 4.16. In addition to service-connected PTSD, DM2, and peripheral neuropathy of the bilateral lower extremities, the Veteran was and remains significantly limited by a nonservice-connected back disorder resulting from a workplace injury he sustained in 1993. At his March 2016 Board hearing, he testified that he severely damaged three discs in his thoracic spine area resulting in a workers' compensation award. While his physical abilities were significantly impacted by his nonservice-connected back disorder, consideration for a TDIU focuses only on his service-connected disabilities. Turning to the evidence, in his initial April 2005 claim for TDIU, the Veteran stated that he had become too disabled to work at the same time his disability affected his full time employment in October 2003. He stated that his last job was from August 2001 to August 2003 serving as a van driver and dispatcher and that he did not leave that job because of his disabilities. He reported two years of college education in addition to vocational training as an aircraft mechanic and a dispatcher certification. He included a statement that all of the professions for which he was qualified required extended periods of either standing or sitting, and that due to his present physical conditions he could not tolerate prolonged periods due to worsening conditions and an increase in handicaps. In May and June 2005 statements, he reported that he could no longer hold a job anywhere because he could not sit in a chair long enough to be on a computer for any length of time that would be required for an 8-hour work day, and that he could not walk for more than a few minutes before needing a break due to the impacts of diabetic peripheral neuropathy symptoms. He further related that he was unable to function normally, both physically and emotionally. He stated that he had been removed from nearly every job he had held following separation from service, was divorced twice, had lost most of his friends, and experienced loneliness because of PTSD. In a March 2010 VA general medical examination, after a review of the medical history and an examination of the Veteran, the examiner concluded that the Veteran's medical disorders did not prevent him from continuing employment. Similarly, in an April 2011 VA PTSD examination, he was found to have occasional decreased in work efficiency or intermittent periods of inability to perform occupational tasks due to sign and symptoms, but he was found to be generally functioning satisfactory with medication. While occasional or intermittent periods of decreased occupational tasks, he was not found to have total occupational impairment. In a July 2013 mental health diagnostic study note, the clinician found that the Veteran had occupational and social impairment with reduced reliability and productivity; however, he was not found to have total impairment. In August 2013 VA examination, it was found that peripheral neuropathy, erectile dysfunction, or DM2 did not impact his ability to work. In an October 2014 VA PTSD examination, which ultimately formed the basis of a higher rating for PTSD and for a grant of TDIU, the examiner opined that the Veteran's level of impairment was characterized by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The PTSD symptoms included the following: depressed mood, panic attacks that occur weekly or less often; chronic sleep impairment; impaired judgment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a worklike setting; inability to establish and maintain effective relationships; impaired impulse control, such as unprovoked irritability with periods of violence; and neglect of personal appearance and hygiene. Indeed, the November 2016 rating decision granting TDIU stated that the Veteran's symptoms related to frequent panic attacks, impaired judgment, impaired impulse control, and neglect of personal appearance and hygiene would interfere significantly in the workplace; further, the effective date was established as the date of his grant for increase in PTSD because the evidence associated with that claim indicated his PTSD symptoms had become so severe as to prevent employment. An April 2017 VA social work and industrial survey was conducted to, in part, retrospectively determine the functional impact of the Veteran's overall disability picture on his ability to obtain and maintain substantially gainful employment. He reported he had sustained a significant back injury while working in 1993. Following his recovery, he returned to the workforce between 1993-2000 but many of his jobs were temporary or he was fired or laid off on account of functional impairment associated with his nonservice-connected back pain. The examiner opined that there was insufficient evidence of clinically significant occupational impairment from the Veteran's service-connected disabilities between separation from active service in November 1970 and 2000-2001. The Veteran worked as a chauffeur/driver between 2000 and 2003, and had obtained certification to work as a dispatcher as well; however, that role never materialized. His employment was terminated in 2003 because he allegedly made too many cruel and lewd comments and was accused of sexual harassment by co-workers. The examiner further opined that there was insufficient evidence of clinically significant occupational impairment from the Veteran's service-connected disabilities between 2001 and 2003-2004. The Veteran reported that he lived and worked on a farm with a house and 30 acres on his father's estate between 2003 and 2007 with his ex-wife. He received 100 percent SSA disability due to back pain in 2007. He reported he lost his home and property in 2011 because his sister stopped paying taxes on it. Thereafter, he lived with his mother for one and a half years, taking care of her dogs, and working and providing transportation for her wherever she needed to go. The record reflects that, around the same time, he was asked to leave his mother's home and find housing on his own. This evidence does not support a finding that the Veteran was unemployable prior to 2013 due to his service-connected disabilities and weighs against the claim. In sum, while the Veteran met the schedular criteria for consideration of the assignment of a TDIU prior to October 22, 2013, the probative evidence of record indicates that he possessed the physical and emotional capabilities necessary to perform sedentary employment despite the symptoms caused by his service-connected disabilities. Although he may have been precluded from strictly physical employment due to the physical limitations imposed by his diabetic peripheral neuropathy of the bilateral lower extremities, the record reflects that his 1993 back injury and nonservice-connected disabilities resulting therefrom were the most significant limiting factor. Indeed, there is little indication from the record that the Veteran was unable to perform sedentary computer work using a mouse with minimal typing. Moreover, his reported personal history stated that he had a strong leisure interest in computers and was technically proficient with them, suggesting that he possessed the skills necessary to obtain such employment. Additionally, while he has reported he was let go from his last job as a result of symptoms of his service-connected disabilities, the probative evidence of record shows that his inappropriate humor and poor interpersonal relations were largely responsible for his termination. Therefore, the most probative evidence of record establishes that the Veteran's service-connected disabilities alone did not preclude him from obtaining and maintaining substantially gainful employment consistent with his education and occupational history prior to October 22, 2013. Accordingly, the preponderance of the evidence is against the claim, and entitlement to a TDIU prior to October 22, 2013, is denied. Finally, VA has met all statutory and regulatory notice and duty to assist provisions and the Veteran has not asserted otherwise. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Of note, per the February 2017 Board remand instructions, the RO conducted the directed development. There was no vocational rehabilitation (VR&E) file for the Veteran as he had not previously claimed VR&E benefits. Social Security Administration (SSA) records were obtained and associated with the file. Current VA medical treatment records were associated with the file and any and all private medical records were already of record. Therefore, no further due process actions are required. ORDER Entitlement to a TDIU prior to October 22, 2013 is denied. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs