Citation Nr: 20007017 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 14-11 119 DATE: January 28, 2020 ORDER A temporary total rating for hospital treatment in excess of 21 days for a service-connected disability under 38 C.F.R. § 4.29 is denied. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The Veteran served on active duty from September 1988 to January 1992. 2. The Veteran is not shown to have required hospitalization for more than 21 days due to a service-connected disability. 3. The Veteran’s service-connected disabilities have not rendered her unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to a temporary total rating on the basis of hospital treatment in excess of 21 days have not been satisfied. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.29 (2018), 2. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 3.340, 3.341, 4.15, 4.16 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS When the case was previously before the Board of Veterans’ Appeals (Board) in October 2016, February 2018 and May 2019, it was remanded for additional development. Temporary Total Rating A total disability rating (100 percent) will be assigned without regard to other provisions of the rating schedule when it is established that a service-connected disability has required hospital treatment in a VA hospital or an approved hospital for a period in excess of 21 days. 38 C.F.R. § 4.29. In this case, an April 2017 VA treatment record indicated that the Veteran has been receiving psychiatric treatment since 1994, including inpatient treatment and multiple psychiatric hospitalizations. Private treatment records note that she was privately hospitalized from for 6 days in July 2002, 13 days from July to August 2002, and 7 days in October 2008. VA treatment records also reflected hospitalizations for 4 days in November 2010, 3 days in September 2011, 4 days in November 2011, 4 days in March 2012, and 2 days in June 2012. An October 2011 VA treatment program indicated that the Veteran was admitted to the Day Hospital program in early October 2011, which was a two-week partial hospitalization program requiring attendance from Monday to Friday, 8am to 2pm. As the Veteran’s now service-connected PTSD did not require hospital treatment for a period in excess of 21 days, the claim for temporary total rating under 38 C.F.R. § 4.29 must be denied. There is no evidence of any hospitalization for any other service-connected disorder which is over 21 days and she has not contended so. For these reasons, the medical evidence does not support a temporary total rating under 38 C.F.R. § 4.29. TDIU It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled. 38 C.F.R. § 4.16. Substantially gainful employment is that employment that is ordinarily followed by the nondisabled to earn their livelihoods with earnings common to the particular occupation in the community where the veteran resides. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment will not be considered substantially gainful employment. 38 C.F.R. § 4.16 (a). A TDIU may be assigned, if the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, 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 it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more. 38 C.F.R. § 4.16(a). The central inquiry is whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). Consequently, the threshold issue is whether the service-connected disabilities combine to preclude the Veteran from engaging in substantially gainful employment (work that is more than marginal, which permits the individual to earn a “living wage”). Moore v. Derwinski, 1 Vet. App. 356 (1991). The fact that he may be unemployed or has difficulty obtaining employment is not determinative. The Veteran’s service-connected disabilities include PTSD at 70 percent, hallux valgus of the right foot at 10 percent, and hallux valgus of the left foot at 10 percent. The combined rating is 70 percent from May 15, 2018. Thus, she meets the requirements for a TDIU on a schedular basis under 38 C.F.R. § 4.16(a). Even so, to grant TDIU it must be found that she is unable to secure or follow a substantially gainful occupation as a result of her service-connected disabilities. In the May 2013 VA Form 21-8940, the Veteran indicated that she is unemployable due to all service-connected disabilities. She reported a high school education, no additional education or training, and previous employment as a U.S. Postal Service clerk until 2006. On the other hand, an October 2011 VA treatment record noted her report that her highest level of education was a dental assistant associate degree. A January 2017 VA treatment record indicated that she did not finish studying for the dental assistant degree. Also noted was that she took sewing classes but did not finish. A May 2013 VA treatment record reflected that she attended two years of junior college to be a dental assistant but did not finish. Further, the July 2011 Social Security Administration (SSA) disability determination indicated that she had completed two years of college. A May 2018 VA examination report noted that the Veteran was fired due to coworkers using her role as a cashier to fraudulently obtain and spend postal service money. An October 2011 VA treatment record stated that she pled guilty to federal charges while working at the post office. She was living in a halfway house at that time and reported having four more years of probation. The medical evidence includes a February 2010 private treatment record which demonstrated that the Veteran complained of depression, anxiety, insomnia, nightmares, flashbacks. She also had severe pain in both legs from bilateral hallux valgus and severe bronchial asthma. A private clinician opined that the Veteran was 100 percent disabled and could not work. A July 2011 SSA disability determination report indicated that the Veteran was found disabled under SSA since November 27, 2000 due to her bilateral feet deformities (hallux valgus) and severe major depressive disorder. It was noted that she had a combination of physical and mental impairments that imposed more than minimal restrictions on her ability to perform basic work activities and were severe impairments. It was determined that she had residual functional capacity to perform a full range of work at all exertional levels but with the following non-exertional limitations: she needs a sheltered workshop environment avoiding contact with the general public, and she needs frequent rest periods due to mental distress and frequent bilateral foot pain. She also has limitations that preclude normal standing and walking and the performance of skilled and semiskilled tasks on a sustained basis. Finally, it was found that medical improvement was expected with appropriate treatment. A September 2012 private medical record from Dr. S.L. reflected that the Veteran was diagnosed with depression in remission. She was receiving psychotherapy. Dr. S.L. opined that the Veteran was able to resume her job following psychotherapy. A July 2013 VA treatment record indicated that she was tired of looking for a job, so she decided to go to school. A November 2013 VA treatment record noted that she reported doing fairly well in the past few months. She reported that she had started a course in high fashion design, which was an area of interest to her. She noticed some difficulties working under stress in the class, but the teacher had been very supportive. A January 2017 VA treatment record indicated that the Veteran was not looking for work. A February 2017 VA treatment record noted that she had employment skills being bilingual, a clerk, people skills, sewing skills, and supply management skills. A May 2018 VA PTSD examiner opined that PTSD resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The examiner specifically found that the PTSD did not cause total occupational impairment. A May 2018 VA feet examiner opined that bilateral hallux valgus did not affect the Veteran’s ability to perform any type of occupational task. The Veteran reported pain and flare-ups. During a flare-up she reported that she cannot run or jog. The examiner concluded that there was no functional loss during flare-ups and that the Veteran’s hallux valgus symptoms were mild to moderate. After review, the Board finds that the Veteran is not unable to perform physical or sedentary labor due to her service-connected disabilities. When weighing the above opinions, her PTSD and bilateral hallux valgus do not preclude employment. The Board acknowledges that the Veteran’s PTSD is manifested by symptoms including depressed mood, anxiety, panic attacks, mild memory loss, sleep impairment, disturbances of motivation and mood, near continuous panic or depression affecting ability to function independently, appropriately, or effectively, and difficulty in adapting to stressful circumstances, including work or a worklike setting as well difficulty establishing and maintaining effective work and social relationships, and impaired impulse control. While these symptoms affect her employability, PTSD does not render her unable to secure or follow substantially gainful occupation. In this regard, although the February 2010 private physician opinion stated that the Veteran was 100 percent unemployable, the private clinician did not provide any rationale for the opinion, nor did the clinician state that the Veteran is unemployable due to PTSD and/or hallux valgus. Further, the May 2018 VA examination report noted that the Veteran’s judgment, insight, and memory appeared grossly intact, and after review of the claims file and examination of the Veteran, the VA examiner did not find that PTSD resulted in total occupational impairment. The Veteran’s education and employment background indicate that she has worked for the U.S. Postal Service, and she has some additional training in dental assistance, fashion design, and sewing. While pain and flare-ups due to the hallux valgus would affect employment, the medical evidence does not reflect that she is precluded from physical or other employment due to her hallux valgus, and her employment and educational background do not indicate she would be limited to either physical or sedentary employment. In fact, a March 2017 VA treatment record reflected that she has skills in supply management, people skills, and she is bilingual. The Veteran’s legal troubles led to her separation in 2006 from her previous employment with the U.S. Postal Service. She has not worked since, and a January 2017 VA treatment record indicated that she was not looking for work. A July 2013 VA treatment record noted she was tired of looking for work. While she had some stress and focus related difficulties in her fashion design class, she was able to adapt with the teacher’s support. In sum, the medical evidence shows that she has symptoms due to her PTSD and pain from her hallux valgus; however, her service-connected disabilities would not prevent her from being employable. In so finding, the Board acknowledges the SSA disability determination. However, the determination was made in 2011 and specifically indicated that improvement was expected with treatment. The record reflects that the Veteran has participated in ongoing psychiatric treatment since that time and the May 2018 VA examination report, notably conducted subsequent to the 2011 SSA determination, specifically found that there was not total occupational impairment due to PTSD. Similarly, the May 2018 VA feet examination report (also conducted subsequent to the SSA determination) found that the bilateral hallux valgus resulted in no more than moderate symptoms and did not impact employment. In sum, the Veteran is not precluded from substantial and gainful employment due to his service-connected disabilities. Therefore, entitlement to TDIU is denied. The Board has also considered the Veteran’s lay statements that she is entitled to a temporary total rating as well as a TDIU. While she is competent to report symptoms because this requires only personal knowledge as it comes to her through her senses, the Board places more probative weight on the medical evidence outlining the number of days she was hospitalized, as well as the impact of her service-connected disabilities in her employability. As such, As such, the medical records are more probative than the Veteran’s assertions. In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable and the appeals are denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Redman, Counsel 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.