Citation Nr: 20028062 Decision Date: 04/22/20 Archive Date: 04/22/20 DOCKET NO. 10-22 207 DATE: April 22, 2020 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDING OF FACT The Veteran’s service-connected disabilities do not preclude him from securing and following a substantially gainful occupation consistent with his educational and vocational experience. CONCLUSION OF LAW The criteria for TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321(b)(1), 3.340, 3.341, 4.16, 4.19 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from May 1971 to May 1973 and the United States Navy from September 1974 to July 1975. This matter was initially before the Board in August 2019. The Veteran’s claim for entitlement to service connection for PTSD was granted. The Board remanded his TDIU claim as it was intrinsically intertwined with his PTSD claim, and he did not meet the schedular requirements for PTSD. Entitlement to TDIU. The Veteran appeals the denial of entitlement to TDIU. In his January 2019 application for TDIU, the Veteran indicated that he is unable to work due to his service-connected left shoulder and right ankle disabilities. During his March 2019 hearing, he asserted that his PTSD also renders him unemployable. It should be noted that at the time of his hearing, he was not service-connected for PTSD. However, service connection for PTSD was later granted in the August 2019 Board decision. Thus, the Board will consider the Veteran’s newly service-connected PTSD in analyzing his TDIU claim. VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from securing and following “substantially gainful employment” consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. 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, 529 (1993). Generally, to be eligible for a TDIU, a percentage threshold must be met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). 38 C.F.R. § 4.16(a) provides that consideration of such a rating is warranted if a veteran has one service-connected disability rated 60 percent or more or, if there are two or more such disabilities, there must be at least one that is rated 40 percent or more, with all disabilities combining to 70 percent or more. 38 C.F.R. § 4.16(a). Here, the Veteran is service-connected for major depressive disorder rated as 30 percent disabling since July 13, 2012; residuals of right lateral malleolus fracture rated as 20 percent disabling since September 4, 2008, left shoulder strain with dislocation status post replacement rated as 20 percent disabling since November 1, 2018; tinnitus rated as 10 percent disabling since February 10, 2010; and painful left shoulder scar rated as 10 percent disabling since December 13, 2018. He also has noncompensable ratings for sensorineural hearing loss in the left ear, an additional scar of the left shoulder. The Board notes that the Veteran’s major depressive disorder is attributable, in part, to pain from his orthopedic disorders. See Board decision dated August 2019. As such, the ratings for his orthopedic disorders and psychiatric disorders arrive from the same etiology and may be combined for purposes of determining schedular eligibility for a TDIU rating. 38 C.F.R. § 4.16(a)(2). Thus, he is schedular eligible for TDIU consideration for part of the appeal period. For VA purposes, total disability exists when there is any impairment of the mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. A total disability rating may be granted where the schedular rating is less than 100 percent and the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. In determining unemployability, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). The sole fact that a veteran is unemployed or has difficulty securing employment is not enough, as a high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question 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) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). In making a determination, the Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the U.S. Court of Veterans Appeals (now the U.S. Court of Appeals for Veterans Claims) (Court) discussed the meaning of “substantially gainful employment.” In this context, it noted the following standard announced by the United States Federal Court of Appeals in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): It is clear that the claimant need not be a total ‘basket case’ before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. The CAVC has defined being unable to secure and follow a substantially gainful occupation as having an 1) an economic component of earning more than marginal income (outside of a protected environment as determined by the U.S. Department of Commerce as the poverty threshold for one person and 2) a non-economic component of the individuals ability to secure or follow that type of employment; factors to consider include: the Veteran’s history, education, skill, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Ray v. Wilkie, 31 Vet. App. 58, 62 (2019). Factors that may be relevant include, but are not limited to, the Veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and whether the Veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity.) Upon review of the evidence, the Board finds that entitlement to TDIU is not warranted. In June 2016, the Veteran reported that his service-connected right ankle disability affected his full-time employment as of October 2005. See VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability), received on June 23, 2016. He worked as a supervisor for construction and performed home inspections. He described difficulty getting in and out of vehicles due to his right ankle disability for which he had been prescribed a walker/scooter. He had 2 years of college education with an associate degree in building construction technology. In a January 2019 TDIU form, the Veteran reported that his ankle and shoulder disability have prevented him for obtaining employment. However, as noted above, the Board will consider his recently service-connected disabilities. In his form, he reported working in real estate from 2000 to 2006. He described difficulty standing, sitting and lifting due to his shoulder and ankle. He also indicated that employers who saw him walking with a cane could consider him a liability due to associated absenteeism and medical costs. In regard to the Veteran’s left shoulder disability, his first examination was in January 2009. The Veteran had an abnormal range of motion. His passive range of motion was unchanged from active range of motion and on repetitive testing, his range of motion values were unchanged from baseline. While the examiner stated that the effects of his left shoulder disability impacted his usual daily activities, he determined that it had no significant effect on his occupation. The Veteran was afforded another examination in December 2018. The examiner determined that the Veteran’s left shoulder disability had less movement than normal and had intermediate degrees of residual weakness, pain or limitation of motion. The examiner did note that his left shoulder condition impacted his ability to perform occupational tasks due to shoulder pain, stiffness, limited range of motion. As a result, he would have difficulty with heavy lifting. Relevant treatment records also report complaints of pain in his left shoulder. In regard to the Veteran’s right ankle disability, the Veteran was received an aid and attendance examination in September 2010. The examiner reported pain and limitations of the Veteran’s right ankle disability and the use of assistive devices. Although the examiner recommended the Veteran for aid and attendance, the examiner also factored in the Veteran’s non-service-connected disabilities such as right knee arthritis, chronic back pain, and hypertension when rendering his opinion. The Veteran was then afforded a VA examination in April 2016 for his ankle. The Veteran’s range of motion was abnormal. The Veteran reported using the assistance of a brace on occasions and functional limitations, such as prolonged walking and standing. Nonetheless, the examiner opined that the Veteran’s ankle disability did not impact his ability to perform any type of occupational tasks. In the Veteran’s December 2018 VA examination, the examiner found that the Veteran’s range of motion was abnormal, and had less movement than normal due to interference when standing. He reported the constant use of a cane or walker. Additionally, his ankle disability impacted his ability to perform an occupational task, such as prolonged walking or climbing stairs. Relevant treatment records report complaints of pain and swelling in his ankle. While the VA examinations clearly indicate that the Veteran has limitations due to his right ankle and left shoulder disabilities, none of the examinations performed on the Veteran opined that any of his service-connected disabilities were so severe as to render him unemployable and unable to obtain substantially, gainful employment. Additionally, the Board notes that while the Veteran has assistive devices such as a cane and scooter, the medical evidence shows that the Veteran uses a scooter device for his service-connected ankle disability and non-service-connected chronic back disability. See May 2016 VA Treatment Record. In regard to the Veteran’s psychiatric disability, his most recent VA examination was in June 2013. The Veteran’s symptoms consisted of depressed mood anxiety, suspiciousness, and chronic sleep impairment. The examiner opined that the Veteran’s occupational and social impairment were due to mild or transient symptoms, which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, and his symptoms are controlled by medication. Similarly, in his September 2010 examination, the examiner opined his occupational and social impairment were due to mild or transient symptoms, which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, and his symptoms are controlled by medication. The Veteran’s medical treatment records also report his mental status as alert and oriented to person, place, time, and situation. See e.g., September 2019, August 2018, June 2017, and July 2016 VA Treatment Records. Here, the Board finds that the medical evidence of record is probative. Throughout the period on appeal, the Veteran’s psychiatric disability does not result in any severe or gross impairment in his mental or cognitive functioning or impairment such that he would be unable to perform the mental tasks necessary to obtain or maintain substantially gainful employment. The Board acknowledges that the Veteran’s medical treatment records indicates that he is disabled due to his back. However, as discussed above, he is not service connected for any back condition. Further, the December 2009 letter from the VA Lecanto Outpatient Clinic, which states that he is “totally and permanently disabled,” does not state that he is disabled due to his service-connected disabilities. On that statement alone, it cannot be reasonably inferred that he is disabled due to his service-connected disabilities. In regard to the Veteran’s lay statements regarding unemployability, the Board acknowledges his statements regarding pain and difficulty performing certain activities, such as walking and standing. While the Veteran is competent to describe his symptoms from his service-connected disabilities, he is not competent to offer an opinion regarding the functional impact his service-connected disabilities has on his ability to maintain gainful employment, as this is beyond the scope of a lay person. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The competent and objective medical findings by skilled professionals provide the most persuasive evidence regarding the limitations posed by the Veteran's service-connected disabilities. As such, the lay assertions in this regard have limited probative value. Having considered the medical and lay evidence of record, the Board finds the Veteran’s service-connected disabilities, when considered in its totality, do not preclude him from securing or following a substantially gainful occupation consistent with his educational and vocational history. While the record indicates that the Veteran has experience in a physical labor occupation, as he was a construction supervisor, and he has physical limitations, the Veteran was later able to obtain employment in real estate. Additionally, the Veteran’s two years of college education indicates he has the intellectual and interpersonal skills to perform at least some types of employment that do not involve physical labor such as lifting, carrying, standing for long periods, and the like. The Veteran’s limitations and symptoms associated with his service-connected ankle, shoulder, and psychiatric disabilities are appropriately compensated in accordance to the currently assigned ratings. The Veteran’s ankle may inhibit his ability to walk and his left shoulder may inhibit his ability to lift items, but the medical opinion indicates sufficient functional ability to perform the types of activities required for a real estate agent. His PTSD would impact his ability to interact with customers, purchasers and sellers, but the medical opinion indicates only mild occupational impairment. Based on the foregoing, the Board finds that entitlement to a TDIU is not warranted. While the Board does not doubt that the Veteran’s service-connected disabilities has some impact on his employability, the preponderance of the evidence establishes that those disabilities, without more, would not prevent him from obtaining substantially gainful employment consistent with his educational and occupational experience. Accordingly, the preponderance of the evidence is against the claim, and the claim for TDIU is denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49(1990). T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Adeleke, Associate 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.