Citation Nr: 20005745 Decision Date: 01/23/20 Archive Date: 01/23/20 DOCKET NO. 15-35 544A DATE: January 23, 2020 ORDER A total disability rating based upon individual unemployability due to service-connected disability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran is service-connected for post-traumatic stress disorder (PTSD) rated at 50 percent disabling, bilateral hearing loss rated at 20 percent disabling, and tinnitus rated at 10 percent disabling. 2. The Veteran does not meet the schedular requirements for assignment of a TDIU. 3. The Veteran’s service-connected disabilities are not of sufficient severity as to prevent him from engaging in some form of substantially gainful employment. CONCLUSION OF LAW The criteria to warrant entitlement to TDIU benefits have not been met. 38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1965 to January 1968. In April 2019, the Board granted an increased rating of 50 percent for the Veteran’s service-connected PTSD and recognized an implied claim for entitlement to a TDIU raised by the record, remanding the claim for additional development. See Board Remand dated April 26, 2018; Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Pursuant to the Remand, the RO obtained outstanding VA treatment records, requested additional information from the Veteran, and readjudicated the issue of entitlement to a TDIU. Therefore, the Board finds that its April 2019 Remand directives have been substantially complied with. Stegall v. West, 11 Vet. App. 268 (1998). Preliminary Matter The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusion 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); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Entitlement to a TDIU It is the established policy of VA that all veterans who are unable to secure and maintain substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate “when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.” 38 C.F.R. §§ 3.340(a)(1). Controlling laws provide that a TDIU may be assigned when a veteran has one service-connected disability rated at 60 percent or more, or two or more service-connected disabilities where at least one disability is rated at 40 percent or more and the combined rating is at least 70 percent. 38 C.F.R. § 4.16(a). The record must also show that the service-connected disabilities alone result in such impairment of mind or body that the average person would be precluded from securing or maintaining a substantially gainful occupation. Id. See 38 U.S.C. § 1155. The percentage ratings set forth in the rating schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such disability in civil occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. In other words, the assigned disability ratings in effect are designed to take into account the difficulties the veteran may have in seeking or maintaining employment. Moreover, where these percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. §§ 3.321(b), 4.16(b). The Veteran does not presently meet the schedular percentage requirements for a TDIU. He is in receipt of service connection for PTSD, rated at 50 percent disabling from April 28, 2006; bilateral hearing loss, rated at 20 percent disabling from July 5, 2017; and tinnitus, rated at 10 percent disabling from July 5, 2017; and a combined rating of 60 percent, effective July 5, 2017. Thus, the minimum schedular requirement set forth in 38 C.F.R. § 4.16 is not met. The Board does not have jurisdiction to grant extraschedular TDIU in the first instance but rather can only do so if the Director, Compensation Service first denies extraschedular TDIU. See Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015). As such, the Board will consider based on its de novo review of the record whether such referral is warranted. See 38 C.F.R. § 4.16(b) (2018). Discussion The fact that a veteran is unemployed or has difficulty finding employment does not alone warrant assignment of a TDIU, as a high rating itself establishes that his or her disability makes it difficult for her to obtain and maintain employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Rather, the evidence must show that she is incapable “of performing the physical and mental acts required” to be employed. Id. at 363; 38 C.F.R. § 4.16(a). Thus, the central question is whether a veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability, and not whether a veteran could find employment. Id. Consideration may be given to a veteran’s education, training, and special work experience, but not to his or her age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Turning to the evidence, the Veteran has indicated that he graduated from high school and worked in the construction field and took some college courses until enlisting in the Army in 1965. His DD Form 214 reflects that his Army military occupational specialty (MOS) was Cargo Handler. After separation from service, the Veteran has described working in the construction and mining fields, as a manager for an oil company, and as a truck driver for many years until April 1998 when he suffered a back injury, which rendered him unable to work. September 2005 VA treatment notes reflect that the Veteran reported that in the past he held eleven different jobs in construction over a one-year period and lost six of them because of his “attitude” and conflicts with supervisors, though he was always able to find new work easily because he was a good operator. The VA psychologist noted that the Veteran “seems to have difficulties in relationships possibly due to longstanding personality traits rather than any sequelae from his military experience.” VA treatment notes dated April 2006 reflect that the Veteran was experiencing anxiety and depression; however, he continued to work as a truck driver. The Veteran reported that he was working as a truck driver, at times stating he was driving on a part-time basis, during VA outpatient visits in February 2007, May 2007, June 2007, November 2007, June 2008, and January 2010. VA treatment notes dated April 2010 reflect that the Veteran said he was on disability and could only work part-time. In September 2010, the Veteran was given a VA PTSD examination, during which the examiner diagnosed mild PTSD, and alcohol abuse unrelated to service and not secondary to PTSD. Notably, the Veteran said his last job was working part-time for an auto salvage company where he worked for five years until April 2010 when he lost his commercial driver’s license as a result of a driving under the influence (DUI) charge. The examiner noted that the Veteran exhibited no psychiatric symptoms and concluded that the Veteran’s PTSD symptoms were mild in severity and did not significantly impact his occupational functioning, and that the Veteran remained “fully employable and was able to tolerate the stress, schedule requirements, and interpersonal interactions inherent in any employment setting.” See VA PTSD examination report dated September 10, 2010. During a September 2011 VA outpatient visit, the Veteran reported being unable to work due to psychiatric and medical problems. However, later that month, he noted that he was working at a salvage yard. In May 2015, the Veteran was given a VA PTSD examination, during which the examiner confirmed the diagnosis of PTSD. The Veteran stated that he last worked in 1998 as a truck driver and stopped working due to his back issues. Regarding mental health limitations, the Veteran said he was his own boss and therefore when he was working, he was able to walk away from frustrating situations. The examiner noted the Veteran’s symptoms of depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, and disturbances of motivation and mood. The examiner concluded that the Veteran’s PTSD resulted in 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. See VA PTSD examination report dated May 26, 2015 at pg. 3. In July 2017, the Veteran was given a VA PTSD examination, during which the examiner confirmed the diagnosis of PTSD. The Veteran stated that his last job was in 2009 working “a couple hours [a] week” driving trucks for a scrap yard. The examiner noted symptoms of anxiety; chronic sleep impairment; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. The examiner concluded that the Veteran’s PTSD resulted in 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 examiner noted that overall, “the Veteran’s functioning related to PTSD appears to be comparable to what was indicated in the previous exam.” See VA PTSD examination report dated August 2, 2017. During VA outpatient visits in July and August 2017, the Veteran reported experiencing panic attacks, sometimes twice a day. It was noted in VA treatment records dated September 2017 that the Veteran had had six DUIs in his lifetime, the most recent one occurring in 2009. In August 2017, the Veteran underwent a VA examination for his service-connected hearing loss and tinnitus. The diagnoses were bilateral sensorineural hearing loss and recurrent tinnitus. The examiner noted that the functional impact of the disorders was that the Veteran was unable to hear people in noisy environments if they were not facing him or unless they raised their voices, and difficulty hearing people on the telephone and while listening to television. See VA hearing loss and tinnitus examination report dated August 2, 2017. During an August 2019 VA PTSD examination, the examiner confirmed the Veteran’s PTSD diagnosis. The Veteran reported that he last worked in 2009 part-time two hours per week driving a truck for a scrap yard, but that he hadn’t worked since the scrap yard went out of business. Notably, the examiner remarked that the Veteran said “he wasn’t able to work again as an owner/operator as a truck driver because of back surgery and permanent nerve damage. He didn’t describe any work impairment due to mental health symptoms or impairment.” The examiner noted symptoms of depressed mood; anxiety; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. The examiner concluded that the Veteran’s PTSD resulted in 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. Notably, the examiner remarked that being a truck driver seemed to be a good fit for the Veteran “until he could no longer do it due to physical (not mental) disability. He may benefit from a modified schedule in which his start time was later in the day to accommodate his sleep disturbances.” The examiner added, “Overall, he is mostly impaired by physical ailments and complaints versus mental health ones. See VA PTSD examination report dated August 7, 2019. In an August 2019 letter, the RO notified the Veteran that “Our records show that you may be self-employed,” and requested that the Veteran describe the types of work performed, the number of hours worked per week, the amount of time lost over the prior 12 months due to his service-connected disabilities, and his net and gross earnings over the prior 12 months of employment. In his September 2019 reply, the Veteran took issue with RO’s August 2019 letter, emphasizing that the last date he was self-employed was “04/06/1998.” The Board observes that the Veteran has not provided information about his employment and related income during the period on appeal, depriving VA adjudicators of the ability to determine if he secured only marginal employment or the ability to work sporadically, which is not considered to be substantially gainful employment. See 38 C.F.R. § 4.16(a). Additionally, the Veteran has variously asserted that he stopped working in April 1998, that his last job was driving a truck at a scrap yard in 2009 until it went out of business, and that he drove a truck until he lost his commercial driver’s license in 2010 after his arrest for DUI. The Board finds that the inconsistency of the Veteran’s statements undermines his credibility. Nevertheless, the credible evidence does not show that employment by the Veteran is precluded solely on account of the service-connected disabilities. To the contrary, the evidence demonstrates that employment is precluded, if indeed it is, predominantly because of his non-service-connected physical disorders, and perhaps to an unknown degree from the loss of his commercial driver’s license he attributed to a DUI arrest. While the threshold percentage requirements for entitlement to a TDIU may be set aside in exceptional cases where there is an unusual factor of disability rendering a claimant unable to secure or follow a substantially gainful occupation, in the Veteran’s case the evidence does not show that there is an unusual factor of disability rendering the Veteran unable to secure or follow a substantially gainful occupation solely by reason of his service-connected disabilities, such as to warrant referral to the Director, Compensation and Pension Service. See 38 C.F.R. § 4.16(b). In sum, entitlement to a TDIU is not warranted as the Veteran does not meet the schedular criteria for a TDIU, and the evidence presently of record does not warrant referral of the claim to the Director, Compensation and Pension Service for extraschedular consideration. Therefore, the claim is denied. 38 C.F.R. § 4.16(a), (b). S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Brad Farrell, Associate Attorney The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.