Citation Nr: 19126830 Decision Date: 04/08/19 Archive Date: 04/08/19 DOCKET NO. 17-55 933 DATE: April 8, 2019 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDING OF FACT The preponderance of the evidence shows that the Veteran’s service-connected disabilities do not preclude him from securing and following substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.341, 4.1, 4.15, 4.16(b) (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Army from December 1968 to August 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri which, inter alia, denied entitlement to a TDIU. The Veteran filed a timely notice of disagreement (NOD) and substantive appeal specifically limiting his appeal to the claim herein decided. 1. Entitlement to a TDIU Under 38 C.F.R. § 4.16 (a), a TDIU rating may be assigned in cases in which the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that either the veteran’s single service-connected disability is ratable at 60 percent or more; or, if the veteran has two or more service-connected disabilities, one of the disabilities is ratable at 40 percent or more and the others bring the combined rating to 70 percent or more. Disabilities resulting from a common etiology will be considered as one disability for TDIU purposes. 38 C.F.R. § 4.16 (a)(2). The Veteran’s service-connected disabilities include: posttraumatic stress disorder (PTSD), rated as 50 percent disabling; diabetes, rated as 20 percent disabling; peripheral neuropathy, left and right upper extremity, rated as 20 percent disabling each; peripheral neuropathy, right and left lower extremity, rated as 20 percent disabling each; tinnitus, rated as 10 percent disabling; cardiac ischemia, rated as 10 percent disabling; and hearing loss; rated as noncompensable. His combined disability rating for compensation purposes is 90 percent. Accordingly, the threshold percentage requirements for a schedular TDIU are met. See 38 C.F.R. § 4.16(a). The Veteran contends that his PTSD symptomatology prevents him from securing and following substantially gainful employment. For the following reasons, the criteria for a TDIU have not been met during the period on appeal. During a December 2009 VA examination, the Veteran reported that he completed the eighth grade and that was the highest level of education he has received. He reported that prior to entering the military, he was working as a dish washer in restaurants. After the military, he obtained employment at a factory making electrical appliances which he did for 10 years until the plant closed. He reported that he was employed at another factory where he made closet shelving for 10 years before he was laid off due to cut backs. He was later employed in a land field until the field was closed. Finally, he was employed at a public school district for 10 years as a custodian. He reported that he was recently let go due to health issues—they reported his lay off was due to his inability to adequately perform his job duties. He reported that he had been unemployed since that time and was looking for employment. The Veteran reported a good relationship with his wife and children. He reported that he helped with household chores and in his free time, he liked to listen to music, read, and watch television. The Veteran’s symptoms included sleep disturbance, emotional upset when he was reminded of his service, and was easily startled. The examiner noted that at the time of the evaluation, the Veteran did not appear to be experiencing a great deal of distress related to his PTSD symptomatology. VA treatment records from a June 2011 psychology note reflect that the examiner noted that the Veteran’s PTSD symptoms included some sleep disturbance with terminal and middle insomnia and intrusive thoughts. The Veteran denied current hyper-startle but reported that he has had it in the past. He reported some irritability, hyper-arousal, some avoidant behaviors, denied detachment, and had some friends. He reported that he was fired from his last job because he could not remember to do things. His current level of functioning was described as fair with underlying problems of anxiety and depression. A February 2013 VA examination report reflects that the Veteran was examined in regard to his hypertension and the examiner noted that his hypertension did not impact his ability to work. An April 2015 VA examination report reflects that the examiner noted occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The Veteran described a positive relationship with his wife. He reported positive relationships with his children with frequent contact with his children and grandchildren. He reported frequent contact with one brother and limited contact with another brother. The Veteran was unemployed and last worked in 2008 when he as a custodian at a school district. He reported that he worked at an elementary school for 10 years and retired at the age of 62. He reported that while working, he had a positive relationship with his coworkers and employers, and additionally noted that he loved the kids. He reported that his limitations or restrictions to employment was dizzy spells if he got up quickly, bent over, or stood up. He reported that he was a diabetic and had high blood pressure. The Veteran was not involved in any sort of mental health treatment and last attended a PTSD group therapy “one or two years ago.” When asked about his current psychological and mental health difficulties, the Veteran reported that he did not get along with anyone and the kids called his wife and not him. He reported that his wife irritated him, but he did not say anything. He reported that he did not sleep well and estimated obtaining six hours of sleep overnight and was not refreshed in the morning. He denied having hypervigilant symptoms but reported difficulty concentrating, controlling his anger, and was easily startled. He reported a persistent negative emotional state; marked diminished interest or participation in significant activities; and feelings of detachment or estrangement from others. He reported irritable behavior, angry outbursts with little or no provocation and an exaggerated startle response. He also noted having problems with concentration and difficulty falling asleep, staying asleep, and/or restless sleep. The examiner noted that the Veteran’s symptoms did not appear to impair his social or occupational functioning. The Veteran reported that the intensity of his symptoms seemed like they have gotten worse. In his April 2016 NOD, the Veteran reported that he left his job due to his PTSD causing him problems and concerns. In his October 2017 substantive appeal, the Veteran reported that he was fired from his last job due to his PTSD affecting his ability to do his job. In November 2017, the Veteran submitted a March 2009 letter from the director of administrative services at his prior employment (school district) which was a letter informing the Veteran that his employment had been terminated effective the date of the letter. A reason for the termination was not provided. VA treatment records reflect that the Veteran’s diabetes and hypertension were controlled by medication. The Veteran reported isolated incidents of dizziness; however, the majority of his VA treatment records reflect that the Veteran had no complaint of dizziness and shortness of breath. The above reflects the Veteran’s contentions that his PTSD has prevented him from securing and following substantially gainful employment. Whether a veteran could perform the physical and mental acts required by employment at a given time is an issue about which a lay person may provide competent evidence. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (“neither the statute nor the relevant regulations require the combined effect [of disabilities] to be assessed by a medical expert”). The Veteran’s statement is therefore competent evidence. However, the weight of the above evidence does not reflect that the Veteran’s service connected disabilities would prevent him from securing and following all forms of substantially gainful employment in light of his PTSD symptoms and employment history that includes years of consistent employment of at least 10 years per job. Moreover, the Veteran reported that while he worked, he had a positive relationship with coworkers, employers, and the children. During the December 2009 VA examination, the Veteran reported that he was looking for employment. In the report, the examiner specifically noted that the Veteran did not appear to be experiencing a great deal of distress related to his PTSD symptomatology. The Board acknowledges that the Veteran’s PTSD symptomatology has worsened over the years as noted by the medical evidence summarized above; however, his symptoms have not been severe enough to prevent him from employment. The April 2015 VA examiner specifically noted that his symptoms did not appear to impair his social or occupational functioning. Moreover, the Veteran’s contention that he is unable to work due to his PTSD is not consistent with the findings of VA examiners or his mental health providers. As the evidence fails to establish that the Veteran’s service-connected disabilities preclude substantially gainful employment, the claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Laroche, Associate Counsel